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FR

FR-2006-04-27/06-3993

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24875] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3993] ======================================================================= ----------------------------------------------------------------------- POSTAL RATE COMMISSION Briefing on Declining Block Rate Model AGENCY: Postal Rate Commission. ACTION: Notice of briefing. ----------------------------------------------------------------------- SUMMARY: Commission advisory staff will present a public briefing on a model for designing declining block rates in certain negotiated service agreements. The briefing will be held on May 5, 2006 beginning at 10 a.m. in the Commission's hearing room. It will be followed by a question-and-answer session. A Commission notice issued April 21, 2006 provides additional details, and is posted at http://www.prc.gov. DATES: May 5, 2006. ADDRESSES: Postal Rate Commission, 901 New York Ave., NW., Suite 200, Washington, DC 20268-0001. FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 202-789-6820. Dated: April 24, 2006. Steven W. Williams, Secretary. [FR Doc. 06-3993 Filed 4-26-06; 8:45 am] BILLING CODE 7710-FW-M

usgpo

2024-10-08T14:08:34.528829

FR

FR-2006-04-27/06-4013

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24875] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-4013] ======================================================================= ----------------------------------------------------------------------- RAILROAD RETIREMENT BOARD Sunshine Act; Notice of Public Hearing Notice is hereby given that the Railroad Retirement Board, acting through its appointed Hearing Examiner, will hold a hearing on May 16, 2006, at 9 a.m., in Room 1524 in the Federal Building at 51 SW 1st Avenue, Miami, Florida 33130. The hearing will be held at the order of the Board for the purpose of taking evidence relating to the status of Herzog Transit Services, Inc., as an employer covered by the Railroad Retirement and Railroad Unemployment Insurance Acts. The entire hearing will be open to the public. The person to contact for more information is Karl Blank, Hearing Examiner, phone number (312) 751-4941, TDD (312) 751-4701. Dated: April 24, 2006. Beatrice Ezerski, Secretary to the Board. [FR Doc. 06-4013 Filed 4-25-06; 11:27 am] BILLING CODE 7905-01-M

usgpo

2024-10-08T14:08:34.563098

FR

FR-2006-04-27/E6-6319

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24875-24876] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6319] ======================================================================= ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-53691, File No. 4-518] Joint Industry Plan; Notice of Filing and Order Granting Temporary Effectiveness of Amendment To Plan Establishing Procedures Under Rule 605 of Regulation NMS April 20, 2006. Pursuant to section 11A(a)(3) of the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 608 of Regulation NMS,\2\ notice is hereby given that on April 11, 2006, The Nasdaq Stock Market LLC (``Nasdaq'') submitted to the Securities and Exchange Commission (``SEC'' or ``Commission'') an amendment to the national market system plan that establishes procedures under Rule 605 of Regulation NMS (``Joint-SRO Plan'' or ``Plan'').\3\ The amendment proposes to add Nasdaq as a participant to the Joint-SRO Plan. The Commission is publishing this notice and order to solicit comments from interested persons on the proposed Joint-SRO Plan amendment, and to grant temporary effectiveness to the proposed amendment through August 25, 2006. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78k-1(a)(3). \2\ 17 CFR 242.608. \3\ 17 CFR 242.605. On April 12, 2001, the Commission approved a national market system plan for the purpose of establishing procedures for market centers to follow in making their monthly reports available to the public under Rule 11Ac1-5 under the Act (n/ k/a Rule 605 of Regulation NMS). See Securities Exchange Act Release No. 44177 (April 12, 2001), 66 FR 19814 (April 17, 2001). --------------------------------------------------------------------------- I. Description and Purpose of the Amendment The current participants to the Joint-SRO Plan are the American Stock Exchange LLC, Boston Stock Exchange, Inc., Chicago Board Options Exchange, Inc., Chicago Stock Exchange, Inc., Cincinnati Stock Exchange, Inc. (n/k/a National Stock ExchangeSM), National Association of Securities Dealers, Inc., New York Stock Exchange, Inc. (n/k/a New York Stock Exchange LLC), Pacific Exchange, Inc. (n/k/a NYSE Arca, Inc.), and Philadelphia Stock Exchange, Inc. The proposed amendment would add Nasdaq as a participant to the Joint-SRO Plan. Nasdaq has submitted a signed copy of the Joint-SRO Plan to the Commission in accordance with the procedures set forth in the Plan regarding new participants. Section III(b) of the Joint-SRO Plan provides that a national securities exchange or national securities association may become a party to the Plan by: (i) Executing a copy of the Plan, as then in effect (with the only changes being the addition of the new participant's name in section 11(a) of the Plan and the new participant's single-digit code in section VI(a)(1) of the Plan) and (ii) submitting such executed plan to the Commission for approval. II. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed Joint-SRO Plan amendment is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments Use the Commission's Internet comment form (http://www.sec.gov/rules/sro/nms.shtml); or Send an e-mail to [email protected]. Please include File Number 4-518 on the subject line. Paper Comments Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number 4-518. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro/nms.shtml). Copies of the submission, all subsequent amendments, all written [[Page 24876]] statements with respect to the proposed Joint-SRO Plan amendment that are filed with the Commission, and all written communications relating to the proposed Joint-SRO Plan amendment between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of the filing also will be available for inspection and copying at the principal office of Nasdaq. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number 4-518 and should be submitted on or before May 30, 2006. III. Commission's Findings and Order Granting Accelerated Approval of Proposed Plan Amendment The Commission finds that the proposed Joint-SRO Plan amendment is consistent with the requirements of the Act and the rules and regulations thereunder.\4\ Specifically, the Commission believes that the proposed amendment, which permits Nasdaq to become a participant to the Joint-SRO Plan, is consistent with the requirements of Section 11A of the Act, and Rule 608 of Regulation NMS. The Plan establishes appropriate procedures for market centers to follow in making their monthly reports required pursuant to Rule 605 of Regulation NMS, available to the public in a uniform, readily accessible, and usable electronic format. The proposed amendment to include Nasdaq as a participant in the Joint-SRO Plan will contribute to the maintenance of fair and orderly markets and remove impediments to and perfect the mechanisms of a national market system by facilitating the uniform public disclosure of order execution information by all market centers. --------------------------------------------------------------------------- \4\ In approving this proposed Joint-SRO Plan amendment, the Commission has considered the proposal's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). --------------------------------------------------------------------------- The Commission finds good cause to grant temporary effectiveness to the proposed Joint-SRO Plan amendment, for 120 days, until August 25, 2006. The Commission believes that it is necessary and appropriate in the public interest, for the maintenance of fair and orderly markets, to remove impediments to, and perfect mechanisms of, a national market system to allow Nasdaq to become a participant in the Joint-SRO Plan. Nasdaq represents that it hopes to commence operations as a national securities exchange during the second quarter of 2006, and it must join the Plan as a condition of exchange registration. In addition, as a Plan participant, Nasdaq would have timely information on the Plan procedures as they are formulated and modified by the participants. The Commission finds, therefore, that granting temporary effectiveness of the proposed Joint-SRO Plan amendment is appropriate and consistent with section 11A of the Act.\5\ --------------------------------------------------------------------------- \5\ 15 U.S.C. 78k-1. --------------------------------------------------------------------------- IV. Conclusion It is therefore ordered, pursuant to section 11A of the Act \6\ and Rule 608 of Regulation NMS,\7\ that the proposed Joint-SRO Plan amendment is approved for 120 days, through August 25, 2006. --------------------------------------------------------------------------- \6\ 15 U.S.C. 78k-1. \7\ 17 CFR 242.608. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.\8\ --------------------------------------------------------------------------- \8\ 17 CFR 200.30-3(a)(29). --------------------------------------------------------------------------- J. Lynn Taylor, Assistant Secretary. [FR Doc. E6-6319 Filed 4-26-06; 8:45 am] BILLING CODE 8010-01-P

usgpo

2024-10-08T14:08:34.585746

FR

FR-2006-04-27/06-4009

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24876] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-4009] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [File No. 500-1] In the Matter of Bullhide Corp.; Order of Suspension of Trading April 25, 2006. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Bullhide Corp (a/k/a Bullhide Liner Corp.) because it has not filed a periodic report since the period ended December 31, 1999. The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the above-listed company is suspended for the period from 9:30 a.m. EDT on April 25, 2006, through 11:59 p.m. EDT on May 8, 2006. By the Commission. Jill M. Peterson, Assistant Secretary. [FR Doc. 06-4009 Filed 4-25-06; 11:26 am] BILLING CODE 8010-01-P

usgpo

2024-10-08T14:08:34.607302

FR

FR-2006-04-27/06-4010

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24876] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-4010] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [File No. 500-1] In the Matter of Skygivers, Inc.; Order of Suspension of Trading April 25, 2006. It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Skygivers, Inc. because it has not filed a periodic report since the period ended December 31, 2000. The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company. Therefore, it is ordered, pursuant to section 12(k) of the Securities Exchange Act of 1934, that trading in the above-listed company is suspended for the period from 9:30 a.m. EDT on April 25, 2006, through 11:59 p.m. EDT on May 8, 2006. By the Commission. Jill M. Peterson, Assistant Secretary. [FR Doc. 06-4010 Filed 4-25-06; 11:26 am] BILLING CODE 8010-01-P

usgpo

2024-10-08T14:08:34.632883

FR

FR-2006-04-27/E6-6318

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24876-24878] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6318] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-53686; File No. SR-CHX-2005-27] Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Order Granting Approval of a Proposed Rule Change and Amendment Nos. 1, 2, and 3 To Amend Exchange Delisting Rules To Conform to Recent Amendments to Commission Rules Regarding Removal From Listing and Withdrawal From Registration April 20, 2006. I. Introduction On October 17, 2005, the Chicago Stock Exchange, Inc. (``CHX'' or ``Exchange'') filed with the Securities and Exchange Commission (``SEC'' or ``Commission''), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'')\1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to amend Exchange delisting rules to conform to recent amendments to Commission rules regarding removal from listing and withdrawal from registration. On December 14, 2005, [[Page 24877]] CHX filed Amendment No. 1 to the proposed rule change.\3\ On February 17, 2006, CHX filed Amendment No. 2 to the proposed rule change.\4\ On March 15, 2006, CHX filed Amendment No. 3 to the proposal.\5\ The proposed rule change, as amended, was published for comment in the Federal Register on March 21, 2006.\6\ No comments were received regarding the proposal. This order approves the proposed rule change, as amended. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ In Amendment No. 1, CHX made several changes to the proposed rule text of CHX Article XXVIII, Rule 4 to clarify the organization of the Rule; incorporate the requirement that issuers provide notice to the Exchange upon filing a Form 25; and clarify the effective dates for the old and the new CHX Rule 4. \4\ In Amendment No. 2, CHX included new language to the proposed rule text of CHX Article XXVIII, Rule 4 relating to the timing of certain issuer obligations under amended SEC Rule 12d2-2 and made other grammatical corrections to the proposed rule text. \5\ In Amendment No. 3, CHX included new language to the proposed rule text of CHX Article XXVIII, Rule 4 stating that if an issuer seeks to voluntarily withdraw its securities from listing and has either received notice from the Exchange that it is below the Exchange's continued listing policies and standards, or is aware that it is below such continued listing policies and standards even if it has not received such notice from the Exchange, the issuer must disclose that it is no longer eligible for continued listing (including the specific continued listing policies and standards that the issue is below) in: (i) Its written notice to the Exchange of its determination to withdraw from listing required by amended Rule 12d2-2(c)(2)(ii) under the Act; and (ii) its public press release and website notice required by amended Rule 12d2- 2(c)(2)(iii) under the Act. \6\ See Securities Exchange Act Release No. 53493 (March 16, 2006), 71 FR 14265. --------------------------------------------------------------------------- II. Description of the Proposed Rule Change Section 12 of the Act\7\ and Rule 12d2-2 thereunder\8\ (``SEC Rule 12d2-2'') govern the process for the delisting and deregistration of securities listed on national securities exchanges. Recent amendments to SEC Rule 12d2-2 (``amended SEC Rule 12d2-2'') and other Commission rules require the electronic filing of revised Form 25 on the Commission's Electronic Data Gathering, Analysis, and Retrieval (``EDGAR'') system by exchanges and issuers for all delistings, other than delistings of standardized options and securities futures, which are exempted.\9\ --------------------------------------------------------------------------- \7\ 15 U.S.C. 78l. \8\ 17 CFR 240.12d2-2. \9\ See Securities Exchange Act Release No. 52029 (July 14, 2005), 70 FR 42456 (July 22, 2005). --------------------------------------------------------------------------- In the case of exchange-initiated delistings, amended SEC Rule 12d2-2(b) states that a national securities exchange may file an application on Form 25 to strike a class of securities from listing and/or withdraw the registration of such securities, in accordance with its rules, if the rules of such exchange, at a minimum, provide for: \10\ --------------------------------------------------------------------------- \10\ See also Form 8-K (Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing), which sets forth disclosure requirements for issuers that do not satisfy listing standards. --------------------------------------------------------------------------- (i) Notice to the issuer of the exchange's decision to delist its securities; (ii) An opportunity for appeal to the exchange's board of directors, or to a committee designated by the board; and (iii) Public notice of the national securities exchange's final determination to remove the security from listing and/or registration, by issuing a press release and posting notice on its Web site. Public notice must be disseminated no fewer than 10 days before the delisting becomes effective pursuant to amended SEC Rule 12d2-2(d)(1), and must remain posted on its Web site until the delisting is effective. The Exchange proposes to amend the text of its Article XXVIII, Rule 4 relating to the delisting of securities to comply with the requirements of recently amended SEC Rule 12d2-2. With respect to the above requirements set forth in amended SEC Rule 12d2-2(b), CHX Article XXVIII, Rule 4 currently provides the requisite issuer notice as well as an opportunity for appeal to a committee designated by the Board. As required under amended SEC Rule 12d2-2(b)(1), CHX proposes to state in CHX Article XXVIII, Rule 4(f) that when a final determination is made with respect to the delisting of one or more securities of an issuer, the Exchange's Secretary promptly would provide public notice of that determination by issuing a press release and posting notice on the Exchange's Web site. This notice would be disseminated no fewer than 10 days before the delisting becomes effective and would remain posted on the Exchange's Web site until the delisting is effective. The proposed rule change also states that the Exchange will file Form 25 with the Commission and provide a copy to the issuer. In the case of an issuer-initiated delisting, CHX Article XXVIII, Rule 4 currently requires that in the absence of special circumstances, a security would not be removed from listing and/or registration upon application of the issuer, unless the issuer files with the Exchange a certified copy of a resolution adopted by the board of directors of the issuer authorizing withdrawal from listing and registration. This provision would be retained in the CHX's amended Rule. CHX's proposal would add a new requirement that the issuer must file a copy of Form 25 with the Exchange immediately after filing the Form 25 with the Commission. In addition, CHX proposes revisions to CHX Article XXVIII, Rule 4(b) that would set forth, in general terms, the process that should be followed pursuant to amended SEC Rule 12d2-2 when an issuer seeks to voluntarily withdraw the listing or registration of a security on the Exchange. In such instances, CHX proposes to require the issuer to: (i) Comply with the Exchange's rules for delisting and applicable state laws; (ii) Submit written notice to the Exchange, no fewer than ten days before filing a Form 25, of its intent to withdraw its security; and (iii) Issue public notice of its intent to withdraw from listing and registration; and (iv) File Form 25 with the Commission. CHX also proposes that an issuer seeking to voluntarily apply to withdraw a class of securities from listing on the Exchange that has received notice from the Exchange that it is below the Exchange's continued listing policies and standards, or that is aware that it is below such continued listing policies and standards notwithstanding that it has not received such notice from the Exchange, must disclose that it is no longer eligible for continued listing (including the specific continued listing policies and standards that the issue is below) in: (i) Its written notice of its determination to withdraw from listing required by amended SEC Rule 12d2-2(c)(2)(ii) and; (ii) its public press release and Web site notice required by amended SEC Rule 12d2-2(c)(2)(iii). Finally, the proposal makes other non-substantive changes (such as inserting headings and making the text part of the rule itself, rather than an interpretation to the rule) that are designed to make the rule easier to read. III. Discussion The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange \11\ and, in particular, the requirements of section 6 of the Act.\12\ Specifically, as discussed below, the Commission finds that the proposal is consistent with section 6(b)(5) of the [[Page 24878]] Act,\13\ which requires, in part, that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, and processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. Further, as noted in more detail below, the changes being adopted by CHX meet the requirements of amended SEC Rule 12d2-2. --------------------------------------------------------------------------- \11\ In approving this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). \12\ 15 U.S.C. 78f. \13\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- A. Exchange Delisting Amended SEC Rule 12d2-2(b) states that a national securities exchange may file an application on Form 25 to strike a class of securities from listing and/or withdraw the registration of such securities, in accordance with its rules, if the rules of such exchange, at a minimum, provide for notice to the issuer of the exchange's decision to delist, opportunity for appeal, and public notice of the exchange's final determination to delist. The Commission believes that CHX's current rules and proposal comply with the dictates of amended SEC Rule 12d2-2(b). CHX Article XXVIII, Rule 4 currently provides the requisite issuer notice as well as an opportunity for appeal to a committee designated by the Board. Specifically, issuers may appeal the Hearing Examiner's delisting determinations to the Board's Executive Committee.\14\ In addition, the proposed rule change will provide for public notice of the Exchange's final determination to remove the security from listing and/or registration. This should ensure that investors have adequate notice of an exchange delisting and is consistent with the protection of investors under section 6(b)(5) of the Act.\15\ --------------------------------------------------------------------------- \14\ See CHX Article XXVIII, Article 4. \15\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- B. Issuer Voluntary Delisting In the case of an issuer-initiated delisting, CHX proposes revisions to CHX Article XXVIII, Rule 4(b) that would set forth, in general terms, the process that should be followed when an issuer seeks to voluntarily withdraw the listing or registration of a security on the Exchange, including the issuer's obligation to file Form 25 with the Commission (and to submit it to the Exchange) and the Exchange's obligation to provide public notice of an issuer's voluntary request to delist securities. In the case of an issuer-initiated delisting, CHX proposes to require the issuer to: (i) Comply with the Exchange's rules for delisting and applicable state laws; (ii) Submit written notice to the Exchange, no fewer than ten days before filing a Form 25, of its intent to withdraw its security; and (iii) Issue public notice of its intent to withdraw from listing and registration; and (iv) File Form 25 with the Commission. The Commission believes that the amendments will fully inform issuers of the requirements for voluntary delisting of their securities under CHX rules and federal securities laws. The proposal also sets forth a new requirement not in amended SEC Rule 12d2-2 that would require the issuer to file a copy of Form 25 with the Exchange immediately after filing Form 25 with the Commission. This requirement will allow the Exchange to be fully informed of the actual filing of a Form 25 and be prepared to take timely action to delist the security in accordance with the filing of the Form. CHX also proposes that an issuer seeking to voluntarily apply to withdraw a class of securities from listing on the Exchange that has received notice from the Exchange that it is below the Exchange's continued listing policies and standards, or that is aware that it is below such continued listing policies and standards notwithstanding that it has not received such notice from the Exchange, must disclose that it is no longer eligible for continued listing (including the specific continued listing policies and standards that the issue is below) in: (i) Its statement of all material facts relating to the reasons for withdrawal from listing provided to the Exchange along with written notice of its determination to withdraw from listing required by amended SEC Rule 12d2-2(c)(2)(ii) and; (ii) its public press release and Web site notice required by amended SEC Rule 12d2-2(c)(2)(iii). The Commission believes that this requirement will allow shareholders to be informed and aware that the issuer has failed to meet Exchange listing standards and is voluntarily delisting. Issuers will therefore not be permitted to delist voluntarily without public disclosure of their noncompliance with Exchange listing standards. IV. Conclusion It is therefore ordered, pursuant to section 19(b)(2) of the Act,\16\ that the proposed rule change (File No. SR-CHX-2005-27), as amended, is approved. --------------------------------------------------------------------------- \16\ Id. \17\ 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Market Regulation, pursuant to delegated authority.\17\ J. Lynn Taylor, Assistant Secretary. [FR Doc. E6-6318 Filed 4-26-06; 8:45 am] BILLING CODE 8010-01-P

usgpo

2024-10-08T14:08:34.655344

FR

FR-2006-04-27/E6-6317

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24878-24879] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6317] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-53687; File No. SR-NASD-2006-015] Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Order Approving Proposed Rule Change To Establish the Nasdaq Halt Cross April 20, 2006. On January 31, 2006, the National Association of Securities Dealers, Inc. (``NASD''), through its subsidiary, The Nasdaq Stock Market, Inc. (``Nasdaq''), filed with the Securities and Exchange Commission (``Commission'') a proposed rule change pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ to establish the Nasdaq Halt Cross. On February 16, 2006, Nasdaq filed Amendment No. 1 to the proposed rule change. On March 6, 2006, Nasdaq filed Amendment No. 2 to the proposed rule change. The proposed rule change, as amended by Amendment Nos. 1 and 2, was published for comment in the Federal Register on March 21, 2006.\3\ The Commission received no comments on the proposal. On April 17, 2006, Nasdaq filed Amendment No. 3 to the proposed rule change to make NASD Rule 4703(b)(2)(B) parallel to NASD Rule 4703(a)(2)(B).\4\ This order approves the proposed rule change, as amended. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ See Securities Exchange Act Release No. 53488 (March 15, 2006), 71 FR 14272. \4\ Amendment No. 3 was a technical amendment and therefore not subject to notice and comment. --------------------------------------------------------------------------- The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities [[Page 24879]] association,\5\ the requirements of section 15A of the Act,\6\ in general, and section 15A(b)(6) of the Act,\7\ in particular, which requires, among other things, that the rules of a national securities association be designed to facilitate transactions in securities and to remove impediments to and perfect the mechanism of a free and open market. The Commission believes that the proposed rule change, as amended, should provide useful information to market participants and increase transparency and order interaction at the opening after a trading halt. In addition, the Commission believes that the proposed rule change, as amended, should result in the public dissemination of information that more accurately reflects the trading in a particular security at the open after a trading halt. The Commission notes that the Halt Cross is based on the Nasdaq opening cross, which the Commission approved in a prior filing.\8\ --------------------------------------------------------------------------- \5\ In approving the proposed rule change, the Commission has considered its impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). \6\ 15 U.S.C. 78o-3. \7\ 15 U.S.C. 78o-3(b)(6). \8\ See Securities Exchange Act Release No. 50405 (September 16, 2004), 69 FR 57118 (September 23, 2004). --------------------------------------------------------------------------- It is therefore ordered, pursuant to section 19(b)(2) of the Act,\9\ that the proposed rule change (SR-NASD-2006-015), as amended, be, and it hereby is, approved. --------------------------------------------------------------------------- \9\ 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority.\10\ --------------------------------------------------------------------------- \10\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- J. Lynn Taylor, Assistant Secretary. [FR Doc. E6-6317 Filed 4-26-06; 8:45 am] BILLING CODE 8010-01-P

usgpo

2024-10-08T14:08:34.671730

FR

FR-2006-04-27/E6-6320

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24879-24881] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6320] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-53685; File No. SR-NYSE-2005-72] Self-Regulatory Organizations; New York Stock Exchange, Inc. (n/ k/a New York Stock Exchange LLC); Order Granting Approval of a Proposed Rule Change and Amendment No. 1 Thereto and Notice of Filing and Order Granting Accelerated Approval of Amendment No. 2 Thereto To Amend Exchange Delisting Rules To Conform to Recent Amendments to Commission Rules Regarding Removal From Listing and Withdrawal From Registration April 20, 2006. I. Introduction On October 20, 2005, the New York Stock Exchange, Inc. (n/k/a New York Stock Exchange LLC) (``NYSE'' or ``Exchange'') filed with the Securities and Exchange Commission (``SEC'' or ``Commission''), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to amend Exchange delisting rules to conform to recent amendments to Commission rules regarding removal from listing and withdrawal from registration. On December 22, 2005, NYSE filed Amendment No. 1 to the proposed rule change.\3\ The proposed rule change, as amended, was published for comment in the Federal Register on March 13, 2006.\4\ No comments were received regarding the proposal. On April 11, 2006, the Exchange filed Amendment No. 2 to the proposed rule change.\5\ This order approves the proposed rule change, as amended, publishes notice of Amendment No. 2 to the proposed rule change, and grants accelerated approval to Amendment No. 2. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ In Amendment No. 1, the Exchange made clarifying changes to Item 3 of the Exchange's Form 19b-4 and to Exhibit 1. \4\ See Securities Exchange Act Release No. 53398 (March 2, 2006), 71 FR 12738. \5\ In Amendment No. 2, the Exchange made typographical changes to the proposed rule text of Section 806.02 (Removal from List Upon Request of Company) of the NYSE Listed Company Manual that were intended to clarify that the Exchange's proposed new requirement that a company provide a copy of the Form 25 to the Exchange simultaneously with the filing of such Form 25 with the Commission is a new requirement and is not part of the requirements of Rule 12d2-2(c) under the Act. --------------------------------------------------------------------------- II. Description of the Proposed Rule Change Section 12 of the Act \6\ and Rule 12d2-2 thereunder \7\ (``SEC Rule 12d2-2'') govern the process for the delisting and deregistration of securities listed on national securities exchanges. Recent amendments to SEC Rule 12d2-2 (``amended SEC Rule 12d2-2'') and other Commission rules require the electronic filing of revised Form 25 on the Commission's Electronic Data Gathering, Analysis, and Retrieval (``EDGAR'') system by exchanges and issuers for all delistings, other than delistings of standardized options and securities futures, which are exempted.\8\ --------------------------------------------------------------------------- \6\ 15 U.S.C. 78l. \7\ 17 CFR 240.12d2-2. \8\ See Securities Exchange Act Release No. 52029 (July 14, 2005), 70 FR 42456 (July 22, 2005). --------------------------------------------------------------------------- In the case of exchange-initiated delistings, amended SEC Rule 12d2-2(b) states that a national securities exchange may file an application on Form 25 to strike a class of securities from listing and/or withdraw the registration of such securities, in accordance with its rules, if the rules of such exchange, at a minimum, provide for: \9\ --------------------------------------------------------------------------- \9\ See also Form 8-K (Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing), which sets forth disclosure requirements for issuers that do not satisfy listing standards. --------------------------------------------------------------------------- (i) Notice to the issuer of the exchange's decision to delist its securities; (ii) An opportunity for appeal to the exchange's board of directors, or to a committee designated by the board; and (iii) Public notice of the national securities exchange's final determination to remove the security from listing and/or registration, by issuing a press release and posting notice on its Web site. Public notice must be disseminated no fewer than 10 days before the delisting becomes effective pursuant to amended SEC Rule 12d2-2(d)(1), and must remain posted on its Web site until the delisting is effective. The Exchange proposes to amend sections 804.00 and 806.02 of the Exchange's Listed Company Manual. With respect to the above requirements set forth in amended SEC Rule 12d2-2(b), NYSE rules currently provide the requisite issuer notice as well as an opportunity for appeal to a committee designated by the Board.\10\ NYSE rules do not currently provide for the mandated public notice, and accordingly the Exchange is proposing changes to section 804.00 of the NYSE Listed Company Manual to provide that [[Page 24880]] prior to filing the Form 25 with the Commission to withdraw a security from listing and registration, the Exchange will give public notice of its final determination to delist the security by issuing a press release and posting a notice on its Web site. Such notice would remain posted on the Exchange's Web site until the delisting is effective. --------------------------------------------------------------------------- \10\ See section 804.00 (Procedure for Delisting) of the NYSE Listed Company Manual. --------------------------------------------------------------------------- In the case of an issuer-initiated delisting, the NYSE is retaining section 806.02 of the NYSE Listed Company Manual that currently provides that an issuer may delist a security after its board approves the action and the issuer furnishes the Exchange with a copy of the board resolution authorizing such delisting certified by the secretary of the issuer. The Exchange's proposal would clarify that the issuer must comply with all of the requirements of amended SEC Rule 12d2-2(c) and thereafter file a Form 25 with the Commission to withdraw its security from listing and registration. The Exchange's proposal would also add a new requirement that the issuer must file a copy of Form 25 with the Exchange immediately after submitting the Form 25 with the Commission. In addition to the proposed changes to comply with amended SEC Rule 12d2-2, the Exchange proposes to amend section 804.00 to delete references therein to ``public Directors'' and ``industry Directors,'' as these terms relate to a historical governance structure of the Exchange that no longer exists. III. Discussion The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange \11\ and, in particular, the requirements of section 6 of the Act.\12\ Specifically, as discussed below, the Commission finds that the proposal is consistent with section 6(b)(5) of the Act,\13\ which requires, in part, that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, and processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. Further, as noted in more detail below, the changes being adopted by the Exchange meet the requirements of amended SEC Rule 12d2-2. --------------------------------------------------------------------------- \11\ In approving this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). \12\ 15 U.S.C. 78f. \13\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- A. Exchange Delisting Amended SEC Rule 12d2-2(b) states that a national securities exchange may file an application on Form 25 to strike a class of securities from listing and/or withdraw the registration of such securities, in accordance with its rules, if the rules of such exchange, at a minimum, provide for notice to the issuer of the exchange's decision to delist, opportunity for appeal, and public notice of the exchange's final determination to delist. The Commission believes that the Exchange's current rules and proposal comply with the dictates of amended SEC Rule 12d2-2(b). NYSE rules currently provide for the requisite issuer notice as well as an opportunity for appeal to a committee designated by the Board. Specifically, if the Exchange staff should determine to delist a security, it will notify the issuer in writing of the basis of its determination. Such notice will inform the issuer that the issuer may appeal staff delisting determinations to a committee of the Board of Directors of the Exchange.\14\ In addition, the proposed rule change will provide for public notice of the Exchange's final determination to remove the security from listing and/or registration. This should ensure that investors have adequate notice of an exchange delisting and is consistent with the protection of investors under section 6(b)(5) of the Act.\15\ --------------------------------------------------------------------------- \14\ See Section 804.00 of the NYSE Listed Company Manual. \15\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- B. Issuer Voluntary Delisting In the case of an issuer-initiated delisting, section 806.02 of the NYSE Listed Company Manual currently provides that an issuer may delist a security after its board approves the action and the issuer furnishes the Exchange with a copy of the board resolution authorizing such delisting certified by the secretary of the issuer. The Exchange's proposal would clarify that the issuer must comply with all of the requirements of amended SEC Rule 12d2-2(c) and thereafter file a Form 25 with the Commission to withdraw its security from listing and registration. The Commission believes that the amendments will fully inform issuers of the requirements for voluntary delisting of their securities under NYSE rules and federal securities laws. The proposal also sets forth a new requirement not in amended SEC Rule 12d2-2 that would require the issuer to notify the Exchange that it has filed Form 25 with the Commission contemporaneously with such filing. This requirement will allow the Exchange to be fully informed of the actual filing of a Form 25 and be prepared to take timely action to delist the security in accordance with the filing of the Form.\16\ --------------------------------------------------------------------------- \16\ The Commission notes that current section 807.00 of the NYSE Listed Company Manual, which the Exchange is retaining in its rules, provides in part that where a company falls below continued listing standards, the Exchange will permit the company to voluntarily transfer its listing. During this transition, the Exchange will daily disseminate ticker and information notices identifying the security's status and will include similar information on the Exchange's Web site. In addition, amended SEC Rule 12d2-2(c)(2)(iii) requires a company seeking voluntary delisting to publish notice of its intention, along with its reasons for delisting, via a press release and Web site. In such cases, the Commission expects that a company below Exchange continued listing standards, in complying with amended SEC Rule 12d2-2(c)(2)(iii), would disclose in its public notice that it has fallen below continued listing standards, including the specific listing policies and standards which it does not comply with, and is voluntarily delisting from the Exchange. --------------------------------------------------------------------------- C. Accelerated Approval of Amendment No. 2 Pursuant to section 19(b)(2) of the Act,\17\ the Commission may not approve any proposed rule change, or amendment thereto, prior to the 30th day after the date of publication of notice of the filing thereof, unless the Commission finds good cause for so doing and publishes its reasons for so finding. The Commission hereby finds good cause for approving Amendment No. 2 to the proposal, prior to the 30th day after publishing notice of Amendment No. 2 in the Federal Register. The revisions made to the proposal in Amendment No. 2 are typographical changes clarifying that the Exchange's proposed requirement that a company provide a copy of the Form 25 to the Exchange simultaneously with the filing of such Form with the Commission is a new requirement and is not part of the requirements of amended SEC Rule 12d2-2(c). This was the intent of the provision as originally proposed. The Commission believes that accelerating Amendment No. 2 is appropriate because these revisions are clarifying and do not raise new regulatory issues. Accordingly, pursuant to Section [[Page 24881]] 19(b)(2) of the Act,\18\ the Commission finds good cause to approve Amendment No. 2 prior to the thirtieth day after notice of the Amendment is published in the Federal Register. --------------------------------------------------------------------------- \17\ 15 U.S.C. 78s(b)(2). \18\ Id. --------------------------------------------------------------------------- IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning Amendment No. 2, including whether Amendment No. 2 is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or Send an e-mail to [email protected]. Please include File No. SR-NYSE-2005-72 on the subject line. Paper Comments Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSE-2005-72. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSE-2005-72 and should be submitted on or before May 18, 2006. V. Conclusion It is therefore ordered, pursuant to section 19(b)(2) of the Act,\19\ that the proposed rule change (File No. SR-NYSE-2005-72), as amended, is approved, and Amendment No. 2 to the proposed rule change is hereby granted accelerated approval. --------------------------------------------------------------------------- \19\ Id. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.\20\ --------------------------------------------------------------------------- \20\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- J. Lynn Taylor, Assistant Secretary. [FR Doc. E6-6320 Filed 4-26-06; 8:45 am] BILLING CODE 8010-01-P

usgpo

2024-10-08T14:08:34.694780

FR

FR-2006-04-27/E6-6321

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24881-24885] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6321] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-53689; File No. SR-NYSE-2005-60] Self-Regulatory Organizations; New York Stock Exchange, Inc. (n/ k/a New York Stock Exchange LLC); Notice of Filing of Proposed Rule Change and Amendment No. 2 Thereto Relating to Proposed New Rules 342.24 (``Annual Branch Office Inspection'') and 342.25 (``Risk-Based Surveillance and Branch Office Identification'') to Permit Member Organizations to Classify Appropriate Branch Offices for Cyclical Inspections and Proposed New Rule 342.26 (``Criteria for Inspection Programs'') April 20, 2006. Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that on August 15, 2005, the New York Stock Exchange, Inc.\3\ (n/k/a New York Stock Exchange LLC) (``Exchange'') filed with the Securities and Exchange Commission (``SEC'' or ``Commission'') the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Exchange filed Amendment No. 2 to the proposed rule change on April 7, 2006.\4\ The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ The Exchange is now known as the New York Stock Exchange LLC. See Securities Exchange Act Release No. 53382 (February 27, 2006), 71 FR 11251 (March 6, 2006). \4\ See Amendment No. 2. The Exchange filed Amendment No. 1 to the proposed rule change on October 31, 2005 and subsequently withdrew Amendment No. 1 on April 7, 2006. --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange is filing with the Commission proposed new Exchange Rules 342.24 (``Annual Branch Office Inspection'') and 342.25 (``Risk- Based Surveillance and Branch Office Identification'') to permit organizations to classify appropriate branch offices for cyclical inspections and 342.26 (``Criteria for Inspection Programs''). The text of the proposed rule change is available on the Exchange's Web site (http://www.nyse.com), at the Exchange's Office of the Secretary, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The proposed amendments would permit member organizations, with the written approval of the Exchange, to exempt certain branch offices from the general annual branch office inspection requirement of Exchange Rule 342 (``Offices--Approval, Supervision and Control'') by utilizing an Exchange-approved risk-based surveillance system.\5\ In addition, the proposed amendments would re-position a portion of Exchange Rule 342's Interpretation into the rule text. --------------------------------------------------------------------------- \5\ Pursuant to discussions with Exchange staff, the Commission made clarifying changes to the purpose section of the proposed rule change. Telephone conversations between Stephen Kasprzak, Principal Counsel, Rule and Interpretative Standards, Exchange, and Cyndi N. Rodriguez, Special Counsel, and Kate Robbins, Attorney, Division of Market Regulation (``Division''), Commission, on April 18, 2006. --------------------------------------------------------------------------- The purpose of the proposed amendments is to provide member organizations the flexibility to reduce [[Page 24882]] unnecessary inspections of low-risk branch offices with good compliance records and to more fully concentrate surveillance and compliance resources on those branch offices that would most likely benefit from more frequent or more thorough on-site inspections. This would be accomplished through the ongoing monitoring of prescribed branch office criteria that would serve as effective indicators to distinguish those offices that warrant annual inspection from those that might not. Further, use of the prescribed criteria would enable member organizations to more effectively direct attention to those regulatory risk areas most likely in need of closer scrutiny during the course of an on-site inspection. The proposed amendments would require that every branch office, without exception, be inspected at least once every three calendar years. Background Exchange Rule 342 and its Interpretation currently require that branch office inspections be conducted at least annually by member organizations, unless it has been demonstrated to the satisfaction of the Exchange that because of proximity, special reporting or supervisory practice, other arrangements may satisfy the Rule's requirements.\6\ Under this Interpretation, exemptions from the general annual inspection requirement have been determined on case-by-case basis, one branch office at a time. Recent years have brought to the securities industry an increase in the number of smaller, so-called ``limited purpose offices,'' \7\ as well as many life-style changes (such as increasing use of home offices). These business/demographic changes, coupled with advances in the use of surveillance technology, strongly suggest that it may be no longer practicable or necessary that all branch offices warrant on-site annual inspections. --------------------------------------------------------------------------- \6\ Interpretation Handbook Rule 342(a),(b)[sol]03 (``Annual Branch Office Inspection''). \7\ See Securities Exchange Act Release No. 52640 (October 19, 2005), 70 FR 61672 (October 25, 2005) (SR-NYSE-2004-51). --------------------------------------------------------------------------- The provision, noted above, allowing for a case-by-case exemption from the annual inspection requirement is being retained. However, in order to provide a more uniform standard to determine such exemptions, and in recognition of available surveillance capabilities, proposed Exchange Rule 342.24 would permit member organizations to submit to the Exchange, for approval, policies and procedures outlining the use of a risk-based surveillance system that the firm would utilize to identify branch offices requiring less frequent than annual inspections. The proposed amendments would require that all branch offices, without exception, be inspected at least once every three calendar years. Policies and Procedures Under the proposed amendments, a member organization seeking an exemption from the standard annual inspection requirement would be required to submit to the Exchange policies and procedures that reflect their business models and product mix. In addition to the incorporation of prescribed criteria to identify branch offices eligible for exemption from an annual inspection cycle (discussed in detail below), proposed Exchange Rule 342.25 would outline the policy and procedure requirements that member organizations would be required to include in any risk-based surveillance system acceptable to the Exchange pursuant to the proposed amendments. Specifically, such policies and procedures would be required to provide, at a minimum, for: (1) Flexibility to initiate ``for-cause'' inspections, when circumstances warrant, of any branch office that has been exempted from the standard annual inspection cycle; (2) inspection on an unannounced basis of no less than half of the branch offices inspected each year; and (3) a system to allow employees to report compliance issues on a confidential basis outside of the branch office chain of command. The Exchange believes that establishment of these policy and procedure requirements would engender an environment conducive to effective supervision and oversight by member organizations of both branch offices subject to an annual inspection cycle as well as those exempted from the standard cycle. For instance, the requirement that ``for-cause'' inspections be conducted when warranted makes clear that branch offices that have been deemed exempt from the standard annual inspection cycle are not exempt from ongoing surveillance and supervision.\8\ Further, if the profile of an exempted office subsequently changes (with respect to the size or scope of its business activities or significant changes in other risk-based criteria), the firm could reconsider the exemption. In instances where a firm rescinds an exemption from annual branch office inspection due to regulatory ``red flags'' (e.g., registered representatives under special supervision, receipt of multiple customer complaints, etc.), the rescission should remain in effect until the factors or conditions that prompted it have been thoroughly resolved. --------------------------------------------------------------------------- \8\ But see also section 15(b)(4)(E) of the Act, 15 U.S.C. 78o(b)(4)(E). --------------------------------------------------------------------------- The use of unannounced branch office inspections is an effective means of enhancing the integrity of the annual inspection process in that it encourages branch office personnel to properly view regulatory compliance as an ongoing, day-to-day process.\9\ --------------------------------------------------------------------------- \9\ The Division's Staff Legal Bulletin No. 17 (Remote Office Supervision) noted that unannounced inspections may form part of an effective supervisory system. --------------------------------------------------------------------------- The ability of employees located in branch offices to report compliance issues on a confidential basis outside of the branch office chain of command should foster an atmosphere conducive to reporting issues of regulatory concern that may arise at the branch level, but might not be reflected in the prescribed risk criteria. Knowledge of such compliance issues would further assist firm personnel in making ``for-cause'' branch office inspection determinations. Prescribed Criteria Certain prescribed criteria, applied to each branch office, would be required of any acceptable risk-based surveillance system used to determine which branch offices could be exempted from annual inspection. The criteria, selected after extensive review by Exchange staff and consultation with industry representatives, are effective indicators to distinguish those offices that warrant annual inspection from those that might not. Further, their inclusion directs attention to the risks that most need to be addressed via on-site inspection. The risk-based factors to be considered should include, but not necessarily be limited to, the following: (1) Number of registered representatives; (2) A significant increase in the number of registered representatives; (3) Number of customers and volume of transactions; (4) A significant increase in branch office revenues; (5) Incidence of concentrated securities positions in customers' accounts; (6) Aggregate customer assets held; (7) Nature of the business conducted and the sales practice risk to investors associated with the products sold, and product mix (e.g., options, equities, mutual funds, annuities, etc.); (8) Numbers of accounts serviced on a discretionary basis; (9) Compliance and regulatory history of the branch, including: [[Page 24883]] (a) Registered representatives subject to special supervision by the member organization, self-regulatory authorities, state regulatory authorities or the SEC in years other than the previous or current year; (b) Complaints, arbitrations, internal discipline, or prior inspection findings; and (c) Persons subject to recent disciplinary actions by self- regulatory authorities, state regulatory authorities or the SEC. (10) Operational factors, such as the number of errors and account designation changes per registered representative; (11) Incidence of accommodation mailing addresses (e.g., post office boxes and ``care of'' accounts); (12) Whether the branch office permits checks to be picked up by customers or hand delivery of checks to customers; (13) Experience, function (producing or non-producing) and compensation structure of branch office manager; (14) Branch offices recently opened or acquired; and (15) Changes in branch location, status or management personnel. The size of the office (as represented by the number of registered representatives, the number of customers, the volume of transactions and the aggregate customer assets held), as well as any significant increase in the number of registered representatives or revenues, are quantitative considerations that a firm should carefully assess before granting an exemption from the annual inspection. Either individually or in aggregate, these factors could indicate that the office's activity is so extensive that, as a matter of good practice, it should be inspected annually, even in the absence of any disciplinary or operational ``red flags.'' In fact, as discussed below, certain quantitative thresholds would, in and of themselves, disqualify offices from an annual inspection exemption. The incidence of concentrated securities positions in customers' accounts is included since highly concentrated positions, particularly in securities not recommended by the firm, could be indicative of unsuitable or highly leveraged activity. The nature of the business conducted and the sales practice risk to investors associated with the products sold and product mix of the branch office would be factors to consider, as would the prevalence of certain types of investment strategies. For example, a high level of low-priced equities (e.g., penny stocks) might be indicative of potential sales practices problems. The numbers of accounts serviced on a discretionary basis would be a factor given the heightened potential for abuse (e.g., churning or excessive trading) in such accounts. As with all risk-based criteria, the factors noted above should not be viewed strictly in quantitative terms but should also be subjected to qualitative analysis when determining whether to exempt a branch from the annual inspection requirement. For example, while a branch office's increase in revenue may simply be attributable to an increase in the number of registered representatives it employs, it may also be attributable to increased sales volume from existing customers of registered representatives, which could be indicative of an inappropriately aggressive sales effort. Also to be considered when conducting a branch office risk analysis is the compliance and regulatory history of the branch office. Such factors include: (1) Registered representatives subject to special supervision \10\ by the member organization, self-regulatory authorities, state regulatory authorities or the SEC in years other than the previous or current year; --------------------------------------------------------------------------- \10\ Indicia of special or heightened supervision include, but are not limited to, limitation on the types of products (e.g., low price or small cap) a broker is permitted to sell, restrictions or elimination in a broker's discretion, restricting the broker to soliciting only firm recommendations, and approval of all or certain transactions prior to execution. --------------------------------------------------------------------------- (2) Complaints, arbitrations, internal discipline, or prior inspection findings; and (3) Persons subject to recent disciplinary actions by self- regulatory authorities, state regulatory authorities or the SEC. In analyzing the compliance and regulatory history of branch offices, firms should, among other things, review the previous 12 months for investigations by any self-regulatory organization or the SEC, customer complaints or complaint summaries, arbitrations and lawsuits closed or pending, Form RE-3 filings submitted to the Exchange pursuant to Exchange Rule 351(a), and internal investigation reports filed pursuant to Exchange Rule 351(e).\11\ --------------------------------------------------------------------------- \11\ See Exchange Information Memo No. 06-6, dated February 17, 2006. See also note 5, supra. --------------------------------------------------------------------------- It is expected that the review and analysis of recent branch office regulatory history would have a considerable effect on exemption determinations. For example, a significant disciplinary action at a given branch office location would strongly suggest against a firm granting an exception from an annual branch office inspection. Moreover, an overall increase in the number of disciplinary actions firm-wide should require the firm to review its overall inspection cycle, particularly regarding inspections on less than an annual basis. As discussed further below, in instances where a branch office has one or more registered representatives subject to special supervision, it should subject that branch office to the annual inspection until such time as the registered representatives are no longer subject to such supervision. In instances where the conduct of a particular registered representative or that of the office generally has been egregious, the firm should take immediate and appropriate action and consider administering on-site inspections on a more frequent than annual basis. In addition, the proposed amendments prescribe certain key operational factors to be considered when making determinations regarding the frequency of branch office inspections. Specific indicators include: (1) The number of errors and account designation changes per registered representative (which can be indicative of unauthorized trading); (2) The presence of ``accommodation'' mailing addresses (e.g., post office boxes and ``care of'' accounts), which can be indicative of a registered representative directing confirms, statements, and other account-related materials to other than the customer; and (3) Whether the branch office permits checks to be picked up by customers or hand delivers checks to customers (a practice that could facilitate misappropriation practices). These criteria reflect the focus of recent amendments to Exchange Rule 342 that subject certain sensitive regulatory functions to internal control procedures in order to address potential lapses in supervision at member organizations.\12\ The referenced operational functions have been included due to their notable misuse, both by registered representatives and branch office managers (BOMs), to the disadvantage of customers. Accordingly, consistent with the general supervision requirements of Exchange Rule 342, a firm should carefully review such criteria, quantitatively and qualitatively, before granting an exemption from an annual inspection. --------------------------------------------------------------------------- \12\ See Exchange Information Memo 04-38, dated July 26, 2004. See also Securities Exchange Act Release No. 49882 (June 17, 2004), 69 FR 35108 (June 23, 2004) (SR-NYSE-2002-36). --------------------------------------------------------------------------- The prescribed criteria further include indicia relative to the BOM, such as his [[Page 24884]] or her experience (whether it is sufficient for the nature and volume of business required to be supervised), whether or not the BOM services customer accounts (which could take time away or otherwise detract from supervisory duties), and the BOM's compensation structure (e.g., whether he or she receives a substantial override from registered representatives' revenue that could lead to a conflict of interest) or whether the BOM's compensation is determined in part by the branch's compliance record. Finally, the proposed amendments require member organizations to consider potential problems associated with branch offices that have been recently opened or acquired, as well as changes in branch office location, status or management personnel. Where firms have acquired branch offices through merger or acquisition, and where such branch offices have had regulatory problems, firms should consider initially subjecting such offices to annual inspections absent compelling reasons to the contrary. Moreover changes in personnel (e.g., the resignation or termination of a BOM) may warrant more diligent review before exempting such branch office from the annual inspection cycle. Branch Offices Not Eligible for Exemption Certain branch offices--given their size, the scope of supervisory activities, or other factors--would not be deemed appropriate for an exemption under the proposed amendments. For instance, offices exercising supervision over other branch offices, those with 25 or more registered individuals, and offices in the top 20% of production or customer assets at the member organization would not be eligible for exemption from the annual inspection requirement, nor would any branch office with a registered representative subject to special supervision in the current or immediately preceding year. Further, the proposed amendments require that every branch office, without exception, be inspected at least once every three calendar years. Repositioning of Interpretation Text The proposed amendments would delete current Interpretation 342(a), (b)[sol]03 in its entirety. However, the Interpretation text is largely being repositioned into the Rule itself. For instance, the proposed amendments retain: (1) The ability of a member organization to request, on an office-by-office basis, an alternate arrangement to an annual inspection; (2) the requirement that branch office inspections be carried out by a person independent of the branch office in question (i.e., not the Branch Office Manager, or any person who directly or indirectly reports to such Manager, or any person to whom such Manager directly reports); and (3) the requirement that internal controls over certain prescribed areas be subject to independent testing and verification.\13\ The amendments would also require that written reports reflecting the results of the inspections must be maintained for the longer of three years or until the next branch inspection.\14\ --------------------------------------------------------------------------- \13\ See proposed Exchange Rule 342.26. \14\ See proposed Exchange Rule 342.24. --------------------------------------------------------------------------- 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with the provisions of section 6(b)(5) under the Act \15\ because it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Exchange believes that the proposed rule change is consistent with the Section in that it should enable member organizations to better allocate and focus their regulatory resources on their branches requiring annual inspections. --------------------------------------------------------------------------- \15\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange believes that the proposed rule change will not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Comments were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the Federal Register or within such longer period (i) as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the Exchange consents, the Commission will: (A) By order approve such proposed rule change, as amended; or (B) Institute proceedings to determine whether the proposed rule change, as amended, should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or Send an e-mail to [email protected]. Please include File Number SR-NYSE-2005-60 on the subject line. Paper Comments Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSE-2005-60. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSE-2005-60 and should be submitted on or before May 18, 2006. [[Page 24885]] For the Commission, by the Division of Market Regulation, pursuant to delegated authority.\16\ --------------------------------------------------------------------------- \16\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- J. Lynn Taylor, Assistant Secretary. [FR Doc. E6-6321 Filed 4-26-06; 8:45 am] BILLING CODE 8010-01-P

usgpo

2024-10-08T14:08:34.713929

FR

FR-2006-04-27/E6-6322

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24885-24886] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6322] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-53688; File No. SR-Phlx-2006-24] Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change and Amendment No. 1 Thereto Relating to Fees Associated With Participation in the Web Central Registration Depository April 20, 2006. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that on April 7, 2006, the Philadelphia Stock Exchange, Inc. (``Phlx'' or ``Exchange'') filed with the Securities and Exchange Commission (``Commission'') the proposed rule change as described in Items I, II and III below, which Items have been prepared by the Phlx. On April 18, 2006, the Phlx filed Amendment No. 1 to the proposed rule change.\3\ The Phlx has designated this proposal as one establishing or changing a due, fee, or other charge imposed by the Phlx under Section 19(b)(3)(A)(ii) of the Act,\4\ and Rule 19b-4(f)(2) thereunder,\5\ which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ In Amendment No. 1, the Exchange made clarifying changes to the proposal, including the rule text. The effective date of the original proposed rule change is April 7, 2006, and the effective date of the amendment is April 18, 2006. For purposes of calculating the 60-day period within which the Commission may summarily abrogate the proposed rule change, as amended, under Section 19(b)(3)(C) of the Act, the Commission considers the period to commence on April 18, 2006, the date on which the Exchange submitted Amendment No. 1. See 15 U.S.C. 78s(b)(3)(C). \4\ 15 U.S.C. 78s(b)(3)(A)(ii). \5\ 17 CFR 240.19b-4(f)(2). --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Phlx proposes to: (1) Adopt fees associated with the implementation of an electronic registration process through the National Association of Securities Dealers, Inc. (``NASD'') Web Central Registration Depository (``Web CRD'');\6\ and (2) amend the Exchange's fee schedule to reflect various changes to Registered Representative Registration fees in connection with the implementation of Web CRD. --------------------------------------------------------------------------- \6\ The Exchange notified the members regarding the migration to Web CRD on February 21, 2006, March 7, 2006, March 27, 2006 and April 10, 2006. --------------------------------------------------------------------------- Specifically, the Exchange proposes to adopt the following NASD fees that will be imposed in connection with participation in Web CRD: (a) An NASD CRD Processing Fee of $85.00; (b) an NASD Disclosure Processing Fee of $95.00; (c) an NASD Annual System Processing Fee of $30.00; and (d) fingerprinting fees which vary depending on the submission: for a first card submission the fee will be $35.00; for a second card submission the fee will be $13.00; for a third card submission the fee will be $35.00; and for processing fingerprint results where the member had prints processed through a self-regulatory organization and not the NASD, the fee will be $13.00. The NASD will process the fingerprint cards and will make the results available to the Exchange, its members, and member and participant organizations via Web CRD. The Exchange is also proposing to assess its fees that are currently referred to on the Exchange's fee schedule as Registered Representative Registration\7\ fees to certain Exchange members designated on Form U4, Uniform Application for Securities Industry Registration or Transfer, as Member Exchange \8\ and to Off-Floor Traders.\9\ Therefore, the initial fee of $55.00, the renewal fee of $55.00 annually, the transfer fee of $55.00 and the termination fee of $30.00 will be assessed on Registered Representatives, Member Exchange and Off-Floor Traders.\10\ --------------------------------------------------------------------------- \7\ Registered Representative categories include registered options principals, general securities representatives, general securities sales supervisors and United Kingdom limited general securities registered representatives but do not include ``off- floor'' traders, as defined in Phlx Rule 604(e). See also Exchange Rule 604(a) and (d). \8\ The Member Exchange category refers to Exchange permit holders. \9\ Every person who is compensated directly or indirectly by a member or participant organization for which the Exchange is the Designated Examining Authority or any other associated person of such member or participant organization, and who executes, makes trading decisions with respect to, or otherwise engages in proprietary or agency trading of securities, including, but not limited to, equities, preferred securities, convertible debt securities or options off the floor of the Exchange (``Off-Floor Traders''), must successfully complete the Uniform Registered Representative Examination Series 7. See Exchange Rule 604. \10\ The $55.00 initial registration fee and annual renewal fee are charged once per registered individual and are not charged per individual registration category. For example, if a person works for a member organization and requests to be registered as an ME and a Series 7 general securities registered representative, the NASD will collect only one Phlx initial registration fee of $55.00. Further, a person registered in multiple categories with a single member organization will be charged a single Phlx annual $55.00 renewal fee and not $55.00 per registration category. --------------------------------------------------------------------------- In connection with the above-referenced fees, the Exchange is proposing to make minor, technical changes to Appendix A of its fee schedule for purposes of clarity. The Examinations Fee is being relocated on Appendix A of the fee schedule to group this fee with similar fees and the categories of Member Exchange and Off-Floor Traders are being added to the currently named Registered Representative Registration fee. The text of the proposed rule change is available on the Phlx's Web site (http://www.phlx.com), at the Phlx's Office of the Secretary, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Phlx included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Phlx has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of the proposed rule change is to adopt fees associated with the implementation of an electronic registration process through NASD's Web CRD,\11\ which should, in turn, [[Page 24886]] create a more efficient registration process by migrating from a manual paper-based Exchange procedure for registration to a web-based registration process that is operated by the NASD. The proposed fees are similar to those fees charged by other Self-Regulatory Organizations that use NASD's Web CRD.\12\ --------------------------------------------------------------------------- \11\ The Commission has approved a proposed rule change filed by the Exchange to use the NASD's Web CRD system as the mechanism for submitting required Forms U4, Uniform Application for Securities Industry Registration or Transfer, and Forms U5, Uniform Termination Notice for Securities Industry Registration. The period from April 10, 2006 to May 11, 2006 has been designated as a phase-in period, which will permit manual filing in case there is a problem with filing via Web CRD. On May 12, 2006, the use of Web CRD will become mandatory. See Securities Exchange Act Release No. 53612 (April 6, 2006), 71 FR 18798 (April 12, 2006) (SR-Phlx-2006-15). \12\ See Securities Exchange Act Release Nos. 51641 (May 2, 2005), 70 FR 24155 (May 6, 2005) (SR-PCX-2005-49); 48066 (June 19, 2003), 68 FR 38409 (June 27, 2003) (SR-AMEX-2003-49); and 45112 (November 28, 2001), 66 FR 63086 (December 4, 2001) (SR-NYSE-2001- 47). --------------------------------------------------------------------------- The purpose of adopting the Member Exchange and Off-Floor Trader fees is to help offset the Exchange's increased costs relating to its regulatory oversight and enforcement programs. Members and member and participant organizations will be instructed to pay the NASD fees associated with Web CRD as well as any Registered Representative/Member Exchange/Off-Floor Trader Registration fees directly to the NASD through Web CRD. NASD will retain the NASD fees and remit the Registered Representative/Member Exchange/Off-Floor Trader Registration fees it collects to Phlx. Finally, additional modifications are being made to the fee schedule to group similar fees together for ease of reference. 2. Statutory Basis The Exchange believes that its proposal to amend its schedule of fees is consistent with Section 6(b) of the Act\13\ in general, and furthers the objectives of Section 6(b)(4) of the Act\14\ in particular, in that it is an equitable allocation of reasonable fees among Exchange members. --------------------------------------------------------------------------- \13\ 15 U.S.C. 78f(b). \14\ 15 U.S.C. 78f(b)(4). --------------------------------------------------------------------------- B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were either solicited or received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act\15\ and paragraph (f)(2) of Rule 19b-4 thereunder.\16 \ --------------------------------------------------------------------------- \15\ 15 U.S.C. 78s(b)(3)(A)(ii). \16\ 17 CFR 240.19b-4(f)(2). --------------------------------------------------------------------------- At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.\17\ --------------------------------------------------------------------------- \17\ See supra note 3. --------------------------------------------------------------------------- IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or Send an e-mail to [email protected]. Please include File Number SR-Phlx-2006-24 on the subject line. Paper Comments Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-Phlx-2006-24. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing also will be available for inspection and copying at the principal office of the Phlx. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-Phlx-2006-24 and should be submitted on or before May 18, 2006. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.\18\ --------------------------------------------------------------------------- \18\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- J. Lynn Taylor, Assistant Secretary. [FR Doc. E6-6322 Filed 4-26-06; 8:45 am] BILLING CODE 8010-01-P

usgpo

2024-10-08T14:08:34.730873

FR

FR-2006-04-27/E6-6345

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24886-24889] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6345] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-53692; File No. SR-Phlx-2005-62] Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; Order Granting Accelerated Approval of Proposed Rule Change and Amendment No. 1 Thereto and Notice of Filing and Order Granting Accelerated Approval to Amendment Nos. 2 and 3 to the Proposed Rule Change Relating to Amending Exchange Delisting Rules To Conform to Recent Amendments to Commission Rules Regarding Removal From Listing and Withdrawal From Registrations April 20, 2006. I. Introduction On October 25, 2005, the Philadelphia Stock Exchange, Inc. (``Phlx'' or ``Exchange'') filed with the Securities and Exchange Commission (``SEC'' or ``Commission''), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to amend Exchange delisting rules to conform to recent amendments to Commission rules regarding removal from listing and withdrawal from registration. On January 4, 2006, Phlx filed Amendment No. 1 to the proposed rule change.\3\ The proposed rule change, as amended, was published for comment in the Federal Register on [[Page 24887]] March 23, 2006.\4\ On March 31, 2006, Phlx filed Amendment No. 2 to the proposed rule change.\5\ On April 12, 2006, Phlx filed Amendment No. 3 to the proposed rule change.\6\ No comments were received regarding the proposal. This order approves the proposed rule change, as amended, on an accelerated basis, publishes notice of Amendment Nos. 2 and 3 to the proposed rule change, and grants accelerated approval to Amendment Nos. 2 and 3. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. \3\ In Amendment No. 1, Phlx amended its rule text and the purpose section of the Exchange's Form 19b-4 to clarify the effective date of the proposed rule change and revised Phlx Rule 809 to state that an issuer proposing to withdraw a security from listing on the Exchange must provide a copy of Form 25 to the Exchange upon filing with the Commission. \4\ See Securities Exchange Act Release No. 53496 (March 16, 2006), 71 FR 14769. \5\ In Amendment No. 2, Phlx amended its rule text to a clarify that an issuer that is below the continued listing policies and standards of the Exchange and seeks to voluntarily apply to withdraw a class of securities from listing must disclose that it is no longer eligible for continued listing in its statement of material facts relating to the reason for withdrawal from listing, its public press release, and its Web site notice. \6\ In Amendment No. 3, the Exchange revised Phlx Rule 811 to clarify that an issuer that is below the continued listing policies and stadards of the Exchange and considering delisting may file a delistign application pursuant to the procedures outlined in amended Phlx Rule 809(b)-(c). --------------------------------------------------------------------------- II. Description of the Proposed Rule Change Section 12 of the Act \7\ and Rule 12d2-2 thereunder \8\ (``SEC Rule 12d2-2'') govern the process for the delisting and deregistration of securities listed on national securities exchanges. Recent amendments to SEC Rule 12d2-2 (``amended SEC Rule 12d2-2'') and other Commission rules require the electronic filing of revised Form 25 \9\ on the Commission's Electronic Data Gathering, Analysis, and Retrieval (``EDGAR'') system by exchanges and issuers for all delistings, other than delistings of standardized options and securities futures, which are exempted.\10\ --------------------------------------------------------------------------- \7\ 15 U.S.C. 78l. \8\ 17 CFR 240.12d2-2. \9\ 17 CFR 249.25. \10\ See Securities Exchange Act Release No. 52029 (July 14, 2005), 70 FR 42456 (July 22, 2005) (``SEC Rule 12d2-2 Approval Order''). --------------------------------------------------------------------------- In the case of exchange-initiated delistings, amended SEC Rule 12d2-2(b) states that a national securities exchange may file an application on Form 25 to strike a class of securities from listing and/or withdraw the registration of such securities, in accordance with its rules, if the rules of such exchange, at a minimum, provide for: (i) Notice to the issuer of the exchange's decision to delist its securities; (ii) An opportunity for appeal to the exchange's board of directors, or to a committee designated by the board; and (iii) Public notice of the national securities exchange's final determination to remove the security from listing and/or registration, by issuing a press release and posting notice on its Web site. Public notice must be disseminated no fewer than 10 days before the delisting becomes effective pursuant to amended SEC Rule 12d2-2(d)(1), and must remain posted on its Web site until the delisting is effective. Phlx Rule 811 (Delisting Policies and Procedures) establishes the procedures for the Exchange to delist a company that is below the Exchange's continued listing criteria. The Exchange proposes to revise Phlx Rule 811 to incorporate the new requirements set forth in amended SEC Rule 12d2-2(b). The provisions set forth in current Phlx Rule 811, which provide for notification to the issuer in the event that the Exchange determines to delist the issuer's securities and the right to appeal the Exchange's determination, satisfy the minimum provisions set forth in amended SEC Rule 12d2-2(b)(1)(i)-(ii). Phlx rules do not currently provide for the mandated public notice, and accordingly, amended Phlx Rule 811(g) would require the Exchange to provide public notice of its final determination to remove a security from listing and/or registration, pursuant to SEC Rule 12d2-2(b)(1)(iii). In addition, proposed Commentary to Phlx Rule 810 would require the Exchange to deliver a copy of the Form 25 promptly to the issuer, pursuant to amended SEC Rule 12d2-2(b)(2). With respect to issuer voluntary delisting procedures, the Exchange proposes to amend Phlx Rule 811 to require an issuer seeking to voluntarily delist from the Exchange to submit Form 25 to the Commission in compliance with the requirements of amended SEC Rule 12d2-2(c). In addition, the issuer would be required to provide a copy of the Form 25 to the Exchange simultaneously with the filing of the Form with the Commission. In addition, Phlx proposes to amend Phlx Rule 809(c) to clarify that not less than ten days before the issuer submits Form 25 an issuer seeking to voluntarily apply to withdraw a security from listing on the Exchange where the issuer has received notice from the Exchange, pursuant to Phlx Rule 811 or otherwise, that the issuer is below the Exchange's continued listing policies and standards, or that the issuer is aware that it is below such continued listing policies and standards notwithstanding that it has not received such notice from the Exchange, must: (i) Provide written notice to the Exchange of its decision to withdraw from listing indicating all material facts relating to the reasons for withdraw in compliance with amended SEC Rule 312d2-2(c); and (ii) Contemporaneously with providing such notice to the Exchange disclose that it is no longer eligible for continued listing (including the specific continued listing policies and standards that the issue is below) in (A) its statement of all material facts relating to the reasons for withdrawal from listing provided to the Exchange along with written notice of its determination to withdraw from listing required by amended SEC Rule 12d2-2(c)(2)(ii), and (B) its release and Web site notice required by amended SEC Rule 12d2-2(c)(2)(iii).\11\ --------------------------------------------------------------------------- \11\ See Amendment No. 2, supra note 5. --------------------------------------------------------------------------- Finally, the Exchange has proposed changes in its rules to clarify that the Form 25 serves as the application to remove a security from listing and/or registration and to specify that the proposed changes will be effective as of April 24, 2006 as required by amended SEC Rule 12d2-2. III. Commission's Findings and Order Granting Accelerated Approval of Proposed Rule Change and Amendment Nos. 1, 2, and 3 The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange \12\ and, in particular, the requirements of Section 6 of the Act.\13\ Specifically, as discussed below, the Commission finds that the proposal, as amended, is consistent with Section 6(b)(5) of the Act,\14\ which requires, in part, that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, and processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. Further, as noted in more detail below, the changes being adopted by Phlx meet the requirements of amended SEC Rule 12d2-2. --------------------------------------------------------------------------- \12\ In approving this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). \13\ 15 U.S.C. 78f. \14\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- [[Page 24888]] A. Exchange Delisting Amended SEC Rule 12d2-2(b) states that a national securities exchange may file an application on Form 25 to strike a class of securities from listing and/or withdraw the registration of such securities, in accordance with its rules, if the rules of such exchange, at a minimum, provide for notice to the issuer of the exchange's decision to delist, opportunity for appeal, and public notice of the exchange's final determination to delist. The Commission believes that Phlx's current rules and proposal comply with the dictates of amended SEC Rule 12d2-2(b). Phlx rules currently provide the requisite issuer notice as well as an opportunity for appeal to a committee designated by the Exchange's Board of Governors. Specifically, issuers may appeal delisting determinations by the Allocation, Evaluation and Securities Committee to an ad hoc Exchange committee appointed by the Board of Governors and the committee will consist of three persons, at least one of which must be a member of the Board of Governors.\15\ Finally, the proposed rule change will provide for public notice of the exchange's final determination to remove the security from listing and/or registration. This should ensure that investors have adequate notice of an exchange delisting and is consistent with the protection of investors under Section 6(b)(5) of the Act.\16\ --------------------------------------------------------------------------- \15\ The other two members of the Committee may be governors, members, Exchange officials, and/or other persons (not having an interest in the matter) as the Chairman of the Board of Governors shall determine. See Phlx Rule 811(d). \16\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- B. Issuer Voluntary Delisting The Exchange proposes to set forth in its Exchange rules the general requirements of amended SEC Rule 12d2-2(c) regarding issuer voluntary delisting. Accordingly, amended Phlx Rule 809 would state that an issuer shall delist its security by filing Form 25 electronically via Edgar in compliance with all of the requirements of amended SEC Rule 12d2-2(c). The Commission believes that the proposal will better inform issuers of the requirements for voluntary delisting of their securities under Phlx rules and federal securities laws. The proposal also sets forth a new requirement not in amended SEC Rule 12d2-2 that would require an issuer seeking to voluntarily delist its security to provide a copy of the Form 25 that it has filed with the Commission simultaneously with such filing. The Commission believes that this requirement will allow the Exchange to be fully informed of the filing of a Form 25 and be prepared to take timely action to delist the security in accordance with the filing of the Form. In addition, Phlx proposes to amend Phlx Rule 809 to clarify that not less than ten days before the issuer submits Form 25, an issuer seeking to voluntarily apply to withdraw a security from listing on the Exchange where the issuer has received notice from the Exchange, pursuant to Phlx Rule 811 or otherwise, that the issuer is below the Exchange's continued listing policies and standards, or that the issuer is aware that it is below such continued listing policies and standards notwithstanding that it has not received such notice from the Exchange, must: (i) Provide written notice to the Exchange of its decision to withdraw from listing indicating all material facts relating to the reasons for withdraw in compliance with amended SEC Rule12d2-2(c); and (ii) Contemporaneously with providing such notice to the Exchange disclose that it is no longer eligible for continued listing (including the specific continued listing policies and standards that the issue is below) in (A) its statement of all material facts relating to the reasons for withdrawal from listing provided to the Exchange along with written notice of its determination to withdraw from listing required by amended SEC Rule12d2-2(c)(2)(ii), and (B) its release and Web site notice required by amended SEC Rule 12d2-2(c)(2)(iii).\17\ --------------------------------------------------------------------------- \17\ See Amendment No. 2, supra note 5. --------------------------------------------------------------------------- The Commission believes that this requirement will allow shareholders to be informed and aware that the issuer has failed to meet Exchange listing standards and is voluntarily delisting with the consent of the Exchange. Issuers will therefore not be permitted to delist voluntarily without public disclosure of their noncompliance with Exchange listing standards. C. Accelerated Approval of Proposed Rule Change and Amendment No. 1, and Amendment Nos. 2 and 3 Pursuant to Section 19(b)(2) of the Act,\18\ the Commission may not approve any proposed rule change, or amendment thereto, prior to the 30th day after the date of publication of notice of the filing thereof, unless the Commission finds good cause for so doing and publishes its reasons for so finding. The Commission hereby finds good cause for approving the proposed rule change, as amended, prior to the 30th day after publishing notice of the proposed rule change and Amendment Nos. 1, 2, and 3 in the Federal Register. In the SEC Rule 12d2-2 Approval Order, the Commission stated that the compliance date of the amendments is April 24, 2006.\19\ In addition, no comments were received on the proposal, as originally published.\20\ Accelerated approval of the proposal, as amended, would enable the Exchange's amended rules to become operative by the compliance date set forth by the Commission. --------------------------------------------------------------------------- \18\ 15 U.S.C. 78s(b)(2). \19\ See SEC Rule 12d2-2 Approval Order, supra note 10. \20\ See note 4, supra. --------------------------------------------------------------------------- The Commission further finds good cause for approving Amendment Nos. 2 and 3 to the proposal, prior to the 30th day after publishing notice of Amendment Nos. 2 and 3 in the Federal Register. In Amendment No. 2, Phlx amended its rule text to clarify that an issuer that is below the continued listing policies and standards of the Exchange and seeks to voluntarily apply to withdraw a class of securities from listing must disclose its status. In Amendment No. 3, the Exchange revised Phlx Rule 811 to clarify that an issuer that is below the continued listing policies and standards of the Exchange and considering delisting may file a delisting application pursuant to the procedures outlined in amended Phlx Rule 809(b)-(c). As previously discussed, the revisions made to the proposal in Amendment No. 2 will allow shareholders to be informed and aware that the issuer has failed to meet Exchange listing standards and is voluntarily delisting with the consent of the Exchange. The Commission believes that granting accelerated approval of Amendment No. 2 will permit the Exchange to implement this new provision as expeditiously as possible, to the benefit of investors. In addition, the revisions made to the proposal in Amendment No. 3 are clarifying changes. The Commission also believes that accelerating approval of Amendment Nos. 2 and 3 is appropriate because these revisions do not raise new regulatory issues. Accordingly, pursuant to Section 19(b)(2) of the Act,\21\ the Commission finds good cause to approve the proposed rule change, as amended, prior to the 30th day after notice of the proposed rule change and Amendment [[Page 24889]] Nos. 1, 2, and 3 are published in the Federal Register. --------------------------------------------------------------------------- \21\ Id. --------------------------------------------------------------------------- IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning Amendment Nos. 2 and 3, including whether Amendment Nos. 2 and 3 are consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or Send an e-mail to [email protected]. Please include File Number SR-Phlx-2005-62 on the subject line. Paper Comments Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-Phlx-2005-62. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of the filing also will be available for inspection and copying at the principal office of the Phlx. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-Phlx-2005-62 and should be submitted on or before May 18, 2006. V. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act,\22\ that the proposed rule change (File No. SR-Phlx-2005-62), as amended by Amendment Nos. 1, 2, and 3, is approved on an accelerated basis. --------------------------------------------------------------------------- \22\ 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority.\23\ --------------------------------------------------------------------------- \23\ 17 CFR 200.30-3(a)(12). --------------------------------------------------------------------------- J. Lynn Taylor, Assistant Secretary. [FR Doc. E6-6345 Filed 4-26-06; 8:45 am] BILLING CODE 8010-01-P

usgpo

2024-10-08T14:08:34.778340

FR

FR-2006-04-27/E6-6343

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24889-24890] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6343] ======================================================================= ----------------------------------------------------------------------- SMALL BUSINESS ADMINISTRATION Small Business Size Standards: Waiver of the Nonmanufacturer Rule AGENCY: U.S. Small Business Administration. ACTION: Notice of waiver of the Nonmanufacturer Rule for certain Petroleum Products. ----------------------------------------------------------------------- SUMMARY: The U.S. Small Business Administration (SBA) is granting a request for a waiver of the Nonmanufacturer Rule for Industrial Gases Manufacturing; Refinery Gases made in Petroleum Refineries; Cyrogenic Tanks, Heavy Gauge Metal Manufacturing; Liquid Oxygen Tanks Manufacturing; Liquefied Petroleum Gases (LPG) Cylinders Manufacturing; Bulk Storage Tanks, Heavy Gauge Metal, Manufacturing; Gas Storage Tanks, Heavy Gauge Metal, Manufacturing; and Cylinders, Pressure, Heavy Gauge Metal, Manufacturing. The effect of a waiver would be to allow otherwise qualified regular dealers to supply the products of any domestic manufacturer on a Federal contract set aside for small businesses; service-disabled veteran-owned small businesses or SBA's 8(a) Business Development Program. DATES: This waiver is effective May 12, 2006. FOR FURTHER INFORMATION CONTACT: Edith Butler, Program Analyst, by telephone at (202) 619-0422; by FAX at (202) 481-1788; or by e-mail at [email protected]. SUPPLEMENTARY INFORMATION: Section 8(a)(17) of the Small Business Act (Act), 15 U.S.C. 637(a)(17), requires that recipients of Federal contracts set aside for small businesses, service-disabled veteran- owned small businesses, or SBA's 8(a) Business Development Program provide the product of a small business manufacturer or processor, if the recipient is other than the actual manufacturer or processor of the product. This requirement is commonly referred to as the Nonmanufacturer Rule. The SBA regulations imposing this requirement are found at 13 CFR 121.406(b). Section 8(a)(17)(b)(iv) of the Act authorizes SBA to waive the Nonmanufacturer Rule for any ``class of products'' for which there are no small business manufacturers or processors available to participate in the Federal market. As implemented in SBA's regulations at 13 CFR 121.1202(c), in order to be considered available to participate in the Federal market for a class of products, a small business manufacturer must have submitted a proposal for a contract solicitation or received a contract from the Federal government within the last 24 months. The SBA defines ``class of products'' based on a six digit coding system. The coding system is the Office of Management and Budget North American Industry Classification System (NAICS). The SBA received a request on January 10, 2006 to waive the Nonmanufacturer Rule for Industrial Gases Manufacturing; Refinery Gases made in Petroleum Refineries; Cyrogenic Tanks, Heavy Gauge Metal Manufacturing; Liquid Oxygen Tanks Manufacturing; Liquefied Petroleum Gases (LPG) Cylinders Manufacturing; Bulk Storage Tanks, Heavy Gauge Metal, Manufacturing; Gas Storage Tanks, Heavy Gauge Metal, Manufacturing; and Cylinders, Pressure, Heavy Gauge Metal, Manufacturing. In response, on February 24, 2006 SBA published in the Federal Register a notice of intent to waive the Nonmanufacturer Rule for Industrial Gases Manufacturing; Refinery Gases made in Petroleum Refineries; Cyrogenic Tanks, Heavy Gauge Metal Manufacturing; Liquid Oxygen Tanks Manufacturing; Liquefied Petroleum Gases (LPG) Cylinders Manufacturing; Bulk Storage Tanks, Heavy Gauge Metal, Manufacturing; Gas Storage Tanks, Heavy Gauge Metal, Manufacturing; and Cylinders, Pressure, Heavy Gauge Metal, Manufacturing. SBA explained in the notice that it was soliciting comments and sources of small business manufacturers of these classes of products. In response to this notice, comments were received from interested parties. SBA has determined that there are no small business manufacturers of these classes of products, and is therefore granting the waiver of the Nonmanufacturer Rule for Industrial Gases Manufacturing; Refinery Gases made in Petroleum Refineries; Cyrogenic Tanks, Heavy Gauge Metal Manufacturing; Liquid Oxygen Tanks Manufacturing; Liquefied Petroleum Gases (LPG) Cylinders Manufacturing; Bulk Storage Tanks, Heavy Gauge Metal, [[Page 24890]] Manufacturing; Gas Storage Tanks, Heavy Gauge Metal, Manufacturing; and Cylinders, Pressure, Heavy Gauge Metal, Manufacturing, (NAICS) codes 325120, 324110 and 332420. Authority: 15 U.S.C. 637(a)(17). Dated: April 20, 2006. Karen C. Hontz, Associate Administrator for Government Contracting. [FR Doc. E6-6343 Filed 4-26-06; 8:45 am] BILLING CODE 8025-01-P

usgpo

2024-10-08T14:08:34.787798

FR

FR-2006-04-27/E6-6358

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24890] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6358] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF STATE [Public Notice 5394] 30-Day Notice of Proposed Information Collection: DS-3077, Request for Entry Into Children's Passport Issuance Alert Program, OMB 1405-XXXX. ACTION: Notice of request for public comments and submission to OMB of proposed collection of information. ----------------------------------------------------------------------- SUMMARY: The Department of State has submitted the following information collection request to the Office of Management and Budget (OMB) for approval in accordance with the Paperwork Reduction Act of 1995. Title of Information Collection: Request for Entry into Children's Passport Issuance Alert Program. OMB Control Number: None. Type of Request: New collection. Originating Office: CA/OCS/CI. Form Number: DS-3077. Respondents: Concerned parents or their agents, institutions, or courts. Estimated Number of Respondents: 2400/year. Estimated Number of Responses: 2400/year. Average Hours Per Response: 50 minutes. Total Estimated Burden: 1992 hours/year. Frequency: On occasion. Obligation to Respond: Required to obtain or retain a benefit. DATES: Submit comments to the Office of Management and Budget (OMB) for up to 30 days from April 27, 2006. ADDRESSES: Direct comments and questions to Alexander Hunt, the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB), who may be reached at (202) 395-7860. You may submit comments by any of the following methods: E-mail: [email protected]. You must include the DS form number, information collection title, and OMB control number in the subject line of your message. Mail (paper, disk, or CD-ROM submissions): Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20530. Fax: 202-395-6974. FOR FURTHER INFORMATION CONTACT: Requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed information collection should be made to Corrin Ferber, Attorney Advisor, CA/OCS/PRI, U.S. Department of State, Washington, DC 20520-4818 , who may be reached on 202-736-9172 or [email protected]. SUPPLEMENTARY INFORMATION: We are soliciting public comments to permit the Department to: Evaluate whether the proposed information collection is necessary for the proper performance of our functions. Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used. Enhance the quality, utility, and clarity of the information to be collected. Minimize the reporting burden on those who are to respond, including through the use of automated collection techniques or other forms of technology. Abstract of Proposed Collection The information requested will be used to support entry of a minor's (an unmarried person under 18) name into the Children's Passport Issuance Alert Program (CPIAP). CPIAP provides a mechanism for concerned parents (other than parents whose parental rights have been terminated by court order), their appointed agents, or other persons having legal custody of the child to obtain information regarding whether the Department has received a passport application for the minor. This program was developed as a means to prevent international abduction of a minor or to help prevent other travel of a minor without the consent of a parent or legal guardian. If a minor's name and other identifying information has been entered into the CPIAP, when the Department receives an application for a new, replacement, or renewed passport for the minor, the application will be placed on hold for up to 60 days and the Office of Children's Issues will attempt to notify the requestor of receipt of the application. Form DS-3077 will be primarily submitted by a parent or legal guardian of a minor. Methodology The completed form DS-3077 may be submitted to the Office of Children's Issues by mail, by fax, or electronically through http://www.travel.state.gov. Dated: March 28, 2006. Catherine Barry, Deputy Assistant Secretary, Consular Affairs, Overseas Citizens Services, Department of State. [FR Doc. E6-6358 Filed 4-26-06; 8:45 am] BILLING CODE 4710-06-P

usgpo

2024-10-08T14:08:34.797913

FR

FR-2006-04-27/06-4005

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24890] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-4005] ----------------------------------------------------------------------- DEPARTMENT OF STATE [Public Notice 5397] Determination Pursuant to Section 1(b) of Executive Order 13224 Relating to Lashkar-e-Tayyiba (LT, LET), aka Lashkar-e-Toiba, aka Lashkar-i-Taiba, aka al Mansoorian, aka al Mansooreen, aka Army of the Pure, aka Army of the Righteous, aka Army of the Pure and Righteous, aka Paasban-e-Kashmir, aka Paasban-i-Ahle-Hadith, aka Pasban-e-Kashmir, aka Pasban-e-Ahle-Hadith, aka Paasban-e-Ahle-Hadis Acting under the authority of Section 1(b) of Executive Order 13224 of September 23, 2001, as amended, and in consultation with the Secretary of the Treasury, the Attorney General, and the Secretary of Homeland Security, I hereby determine that Lashkar-e-Tayyiba uses or has used the following aliases in addition to those listed above: Jamaat-ud-Dawa, JUD, Jama'at al-Dawa, Jamaat ud-Daawa, Jamaat ul-Dawah, Jamaat-ul-Dawa, Jama'at-i-Dawat, Jamaiat-ud-Dawa, Jama'at-ud-Da'awah, Jama'at-ud-Da'awa, Jamaati-ud-Dawa, and Idara Khidmat-e-Khalq. I hereby amend the designation of Lashkar-e-Tayyiba (and its aliases) to add the following names as aliases together with any transliterations of these names: Jamaat-ud-Dawa, aka JUD, aka Jama'at al-Dawa, aka Jamaat ud-Daawa, aka Jamaat ul-Dawah, aka Jamaat-ul-Dawa, aka Jama'at-i-Dawat, aka Jamaiat-ud-Dawa, aka Jama'at-ud-Da'awah, aka Jama'at-ud-Da'awa, aka Jamaati-ud-Dawa, aka Idara Khidmat-e-Khalq. Condoleezza Rice, Secretary of State, Department of State. [FR Doc. 06-4005 Filed 4-26-06; 5:00 pm] BILLING CODE 4710-10-P

usgpo

2024-10-08T14:08:34.828003

FR

FR-2006-04-27/E6-6359

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24891-24895] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6359] [[Page 24891]] ----------------------------------------------------------------------- DEPARTMENT OF STATE [Public Notice 5395] Bureau of Educational and Cultural Affairs Request for Grant Proposals: Professional Development Program for Indian and Pakistani Teachers Announcement Type: New Cooperative Agreement. Catalog of Federal Domestic Assistance Number: 00.00. Funding Opportunity Number: ECA/A/S/X-06-09. Application Deadline: June 13, 2006. Executive Summary: The Fulbright Teacher Exchange Branch in the Office of Global Educational Programs of the Bureau of Educational and Cultural Affairs (ECA) announces an open competition for a $500,000 grant to support the Professional Development Program for Indian and Pakistani Teachers. Accredited U.S. post-secondary educational institutions described in Internal Revenue Code section 26 U.S.C. 501(c)(3) with expertise in teaching English as a Foreign Language (EFL) may submit proposals which combine EFL teaching methodology, curriculum development, and development of leadership and communication skills for up to 30 Indian and Pakistani secondary school teachers. The program will begin with a six-week U.S.-based professional development program for the Indian and Pakistani educators and conclude with joint workshops in India and Pakistan for these teachers. The program should expose the educators to U.S. teaching methodologies, including educational tools designed to increase students' ability to deal with conflict and to cooperate effectively with people of diverse backgrounds. The program proposal should demonstrate the applicant's understanding of issues that are important in English language education in India and Pakistan and the applicant's experience developing educational programs and material for EFL teachers. Proposals should also demonstrate a sensitivity to challenges of educational cooperation between India and Pakistan. I. Funding Opportunity Description I.1. Authority Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87- 256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is ``to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * *; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.'' The funding authority for the program above is provided through legislation. 1.2. Program Goals 1.2a. To strengthen EFL pedagogy and the leadership skills of teachers in India and Pakistan by giving secondary school teachers the opportunity to share best practices and methodology from their own countries with each other and to learn about EFL innovations in the United States. 1.2b. To introduce the teachers to conflict resolution concepts and tools for implementation in the classroom. 1.2c. To strengthen mutual understanding between India, Pakistan, and the U.S. by encouraging the teachers to develop meaningful working relationships with one another and their U.S. colleagues. 1.3. Planning The cooperating institution will be responsible for conducting an initial planning visit to India, and, if feasible, Pakistan, to consult with representatives from the respective United States Educational Foundations (Fulbright Commissions) in India and Pakistan, Ministries of Education, and local educators. The cooperating institution should also consult with the Department of State's Regional English Language Officer (RELO) based at the U.S. Embassy in New Delhi. RELOs are credentialed, experienced foreign service and English as a Foreign Language officers based at U.S. embassies who work with host-country Ministries of Education, universities and teacher-training officials on targeted English language programs. Based on assessments made during this planning visit, the cooperating institution will develop a recruitment plan, a detailed schedule, and curriculum for the U.S.- based program. The Fulbright Commissions in India and Pakistan will recruit and select participants for the program with support from the cooperating institution. The cooperating institution will be responsible for preparing publicity, recruitment and selection materials, including an application form. Special efforts will be made to recruit teachers working in non-elite institutions. Prior to participants' departure for the United States, the Fulbright Commissions in India and Pakistan will conduct pre-departure orientations for participants from their respective countries based on information provided by the cooperating institution. The orientations will provide information about the program, goals, and our expectations of participants, as well as address issues about the participants' stay in the U.S. The cooperating institution will work closely with both Fulbright Commissions to organize the orientations and will develop orientation packets for each participant that cover the aforementioned material. Packets will be sent to the Fulbright Commissions in advance of the scheduled pre-departure orientations. The cooperating institution also should develop a Web site on the program for use during the pre-departure orientation sessions and during subsequent program stages. 1.4. Program Components The applicant should design and implement a two-phased program: a U.S professional development program for Indian and Pakistani secondary school teachers and subsequent workshops in India and Pakistan for these program participants. (a) Pending the availability of funds, the U.S.-based six-week professional development program will begin in Spring 2007. The program must comply with J-1 visa regulations. Please refer to the Solicitation Package for further information. The U.S. program should meet the needs of the Indian and Pakistani participants through EFL instruction as well as curriculum and professional development programs. The program should update the secondary school teachers on best practices in EFL instruction and should also present skills for interacting harmoniously with people of different backgrounds. EFL methodologies focusing on student-centered learning; teaching tolerance, mutual respect, and trust building; strengthening of students' problem-solving, cross-cultural communication, and leadership skills; and computer literacy for EFL instruction should all be included in the program. Time should be allotted to activities outside of the classroom such as visits to schools, team-teaching with U.S. teachers, and attendance at professional meetings. The six-week program should conclude with a visit of three days to Washington, DC. This visit should include meetings [[Page 24892]] with representatives of the Department of State, other government agencies, schools, and private-sector educational associations as well as trips to local educational and cultural sites. (b) The workshops abroad, the second program component, should begin approximately six months after the conclusion of the U.S. training program. There will be one in India and one in Pakistan. The fifteen Pakistani participants will travel to India to join their Indian counterparts and help facilitate a workshop for 100 additional Indian teachers. Subsequently, the fifteen Indian participants will travel to Pakistan for a similar joint workshop for 100 additional Pakistani teachers. Each of these workshops should be approximately two days in length and at least one month should elapse between them. The cooperating institution will coordinate program plans and schedules with ECA's Fulbright Teacher Exchange Branch (ECA/A/S/X) as well as with the Fulbright Commissions in India and Pakistan and the Regional English Language Officer (RELO) based at the U.S. Embassy in New Delhi. The Fulbright Teacher Exchange Branch will approve final program schedules before program implementation. II. Award Information Type of Award: Cooperative Agreement. Fiscal Year Funds: FY 2006. Approximate Total Funding: $500,000. Approximate Number of Awards: 1. Approximate Average Award: $500,000. Anticipated Award Date: September 1, 2006. Anticipated Project Completion Date: March 31, 2008. Additional Information: Pending successful implementation of this program and the availability of funds in subsequent fiscal years, ECA retains the option to renew this grant for two additional years, before openly competing it again. Eligibility Information III.1. Eligible Applicants Applications may be submitted by accredited U.S. post-secondary institutions meeting the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3). III.2. Cost Sharing or Matching Funds There is no minimum or maximum percentage required for this competition; however, the Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs. When cost sharing is offered, it is understood and agreed that the applicant must provide the amount of cost sharing as stipulated in its proposal and later included in an approved grant agreement. Cost sharing may be in the form of allowable direct or indirect costs. For accountability, you must maintain written records to support all costs that are claimed as your contribution, as well as costs to be paid by the Federal government. Such records are subject to audit. The basis for determining the value of cash and in-kind contributions must be in accordance with OMB Circular A-110, (Revised), Subpart C.23--Cost Sharing and Matching. In the event you do not provide the minimum amount of cost sharing as stipulated in the approved budget, ECA's contribution will be reduced in like proportion. III.3. Other Eligibility Requirements Bureau grant guidelines require that organizations with less than four years experience in conducting international exchanges are limited to $60,000 in Bureau funding. ECA anticipates awarding one grant, in an amount up to $500,000 to support program and administrative costs required to implement this exchange program. Therefore, organizations with less than four years experience in conducting international exchanges are ineligible to apply under this competition. The Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs. IV. Application and Submission Information Note: Please read the complete announcement before sending inquiries or submitting proposals. Once the RFGP deadline has passed, Bureau staff may not discuss this competition with applicants until the proposal review process has been completed. IV.1. Contact Information to Request an Application Package Please contact the Office of Global Educational Programs, ECA/A/S/ X, Room 349, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, tel. (202) 453-8897, fax (202) 453-8890, or e- mail [email protected] to request a Solicitation Package. Please refer to the Funding Opportunity Number ECA/A/S/X 06-09 located at the top of this announcement when making your request. Alternatively, an electronic application package may be obtained from grants.gov. Please see section IV.3f for further information. The Solicitation Package contains the Proposal Submission Instruction (PSI) document, which consists of required application forms, and standard guidelines for proposal preparation. It also contains the Project Objectives, Goals and Implementation (POGI) document, which provides specific information, award criteria and budget instructions tailored to this competition. Please specify Program Officer Joan Zaffarano and refer to the Funding Opportunity Number ECA/A/S/X 06-09 located at the top of this announcement on all other inquiries and correspondence. IV.2. To Download a Solicitation Package Via Internet The entire Solicitation Package may be downloaded from the Bureau's Web site at http://exchanges.state.gov/education/rfgps/menu.htm. or from the Grants.gov Web site at http://www.grants.gov. Please read all information before downloading. IV.3. Content and Form of Submission Applicants must follow all instructions in the Solicitation Package. The original and seven copies of the application should be sent per the instructions under IV.3f. ``Application Deadline and Methods of Submission'' section below. IV.3a. You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the U.S. Government. This number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access http://www.dunandbradstreet.com or call 1-866-705- 5711. Please ensure that your DUNS number is included in the appropriate box of the SF-424 which is part of the formal application package. IV.3b. All proposals must contain an executive summary, proposal narrative and budget. Please Refer to the Solicitation Package. It contains the mandatory Proposal Submission Instructions (PSI) document and the Project Objectives, Goals and Implementation (POGI) document for additional formatting and technical requirements. IV.3c. You must have nonprofit status with the IRS at the time of application. If your organization is a private nonprofit which has not received a grant or cooperative agreement from ECA in the past three years, or if your [[Page 24893]] organization received nonprofit status from the IRS within the past four years, you must submit the necessary documentation to verify nonprofit status as directed in the PSI document. Failure to do so will cause your proposal to be declared technically ineligible. IV.3d. Please take into consideration the following information when preparing your proposal narrative: IV.3d.1. Adherence to All Regulations Governing the J Visa. The Bureau of Educational and Cultural Affairs is placing renewed emphasis on the secure and proper administration of Exchange Visitor (J visa) Programs and adherence by grantees and sponsors to all regulations governing the J visa. Therefore, proposals should demonstrate the applicant's capacity to meet all requirements governing the administration of the Exchange Visitor Programs as set forth in 22 CFR 62, including the oversight of Responsible Officers and Alternate Responsible Officers, screening and selection of program participants, provision of pre-arrival information and orientation to participants, monitoring of participants, proper maintenance and security of forms, record-keeping, reporting and other requirements. The cooperating institution will be responsible for issuing DS-2019 forms to participants in this program. A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at http://exchanges.state.gov or from: United States Department of State, Office of Exchange Coordination and Designation, ECA/EC/ECD--SA-44, Room 734, 301 4th Street, SW., Washington, DC 20547. Telephone: (202) 203-5029. FAX: (202) 453-8640. Please refer to Solicitation Package for further information. IV.3d.2. Diversity, Freedom and Democracy Guidelines. Pursuant to the Bureau's authorizing legislation, programs must maintain a non- political character and should be balanced and representative of the diversity of American political, social, and cultural life. ``Diversity'' should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, religion, geographic location, socio-economic status, and disabilities. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the `Support for Diversity' section for specific suggestions on incorporating diversity into your proposal. Public Law 104-319 provides that ``in carrying out programs of educational and cultural exchange in countries whose people do not fully enjoy freedom and democracy,'' the Bureau ``shall take appropriate steps to provide opportunities for participation in such programs to human rights and democracy leaders of such countries.'' Public Law 106-113 requires that the governments of the countries described above do not have inappropriate influence in the selection process. Proposals should reflect advancement of these goals in their program contents, to the full extent deemed feasible. IV.3d.3. Program Monitoring and Evaluation. Proposals must include a plan to monitor and evaluate the project's success, both as the activities unfold and at the end of the program. The Bureau recommends that your proposal include a draft survey questionnaire or other technique plus a description of a methodology to use to link outcomes to original project objectives. The Bureau expects that the cooperating institution will track participants or partners and be able to respond to key evaluation questions, including satisfaction with the program, learning as a result of the program, changes in behavior as a result of the program, and effects of the program on institutions (institutions in which participants work or partner institutions). The evaluation plan should include indicators that measure gains in mutual understanding as well as substantive knowledge. Successful monitoring and evaluation depend heavily on setting clear goals and outcomes at the outset of a program. Your evaluation plan should include a description of your project's objectives, your anticipated project outcomes, and how and when you intend to measure these outcomes (performance indicators). The more that outcomes are ``smart'' (specific, measurable, attainable, results-oriented, and placed in a reasonable time frame), the easier it will be to conduct the evaluation. You should also show how your project objectives link to the goals of the program described in this RFGP. Your monitoring and evaluation plan should clearly distinguish between program outputs and outcomes. Outputs are products and services delivered, often stated as an amount. Output information is important to show the scope or size of project activities, but it cannot substitute for information about progress towards outcomes or the results achieved. Examples of outputs include the number of people trained or the number of seminars conducted. Outcomes, in contrast, represent specific results a project is intended to achieve and is usually measured as an extent of change. Findings on outputs and outcomes should both be reported, but the focus should be on outcomes. We encourage you to assess the following four levels of outcomes, as they relate to the program goals set out in the RFGP (listed here in increasing order of importance): 1. Participant satisfaction with the program and exchange experience. 2. Participant learning, such as increased knowledge, aptitude, skills, and changed understanding and attitude. Learning includes both substantive (subject-specific) learning and mutual understanding. 3. Participant behavior, concrete actions to apply knowledge in work or community; greater participation and responsibility in civic organizations; interpretation and explanation of experiences and new knowledge gained; continued contacts between participants, community members, and others. 4. Institutional changes, such as increased collaboration and partnerships, policy reforms, new programming, and organizational improvements. Please note: Consideration should be given to the appropriate timing of data collection for each level of outcome. For example, satisfaction is usually captured as a short-term outcome, whereas behavior and institutional changes are normally considered longer- term outcomes. Overall, the quality of your monitoring and evaluation plan will be judged on how well it (1) Specifies intended outcomes; (2) gives clear descriptions of how each outcome will be measured; (3) identifies when particular outcomes will be measured; and (4) provides a clear description of the data collection strategies for each outcome (i.e., surveys, interviews, or focus groups). (Please note that evaluation plans that deal only with the first level of outcomes [satisfaction] will be deemed less competitive under the present evaluation criteria.) Cooperating institutions will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request. IV.3d.4. Describe your plans for: sustainability, overall program management, staffing, and coordination with ECA/A/S/X, the RELO at the U.S. Embassy in New Delhi and the Fulbright Commissions of India and Pakistan. ECA/A/S/X considers program management, staffing and coordination [[Page 24894]] with the Department of State essential elements of the program. Please be sure to give sufficient attention to these elements in your proposal by providing a staffing plan that outlines the responsibilities of each staff person and explains which staff member will be accountable for each program responsibility. Wherever possible please streamline administrative processes. Please refer to the POGI in the Solicitation Package for specific guidelines. IV.3e. Please take the following information into consideration when preparing your budget: IV.3e.1. Applicants must submit a comprehensive budget for the entire program. The budget should not exceed $500,000 for program and administrative costs. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may provide separate sub-budgets for each program component, phase, location, or activity to provide clarification. IV.3f. Application Deadline and Methods of Submission: Application Deadline Date: June 13, 2006. Reference Number: ECA/A/S/X-06-09. IV.3f.1. Applications may be submitted in one of two ways: 1. In hard-copy, via a nationally recognized overnight delivery service (i.e., DHL, Federal Express, UPS, Airborne Express, or U.S. Postal Service Express Overnight Mail, etc.), or 2. Electronically through http://www.grants.gov. Along with the Project Title, all applicants must enter the above Reference Number in Box 11 on the SF-424 contained in the mandatory Proposal Submission Instructions (PSI) of the solicitation document. IV.3f.2. Submitting Printed Applications. Applications must be shipped no later than the above deadline. Delivery services used by applicants must have in-place, centralized shipping identification and tracking systems that may be accessed via the Internet and delivery people who are identifiable by commonly recognized uniforms and delivery vehicles. Proposals shipped on or before the above deadline but received at ECA more than seven days after the deadline will be ineligible for further consideration under this competition. Proposals shipped after the established deadlines are ineligible for consideration under this competition. ECA will not notify you upon receipt of application. It is each applicant's responsibility to ensure that each package is marked with a legible tracking number and to monitor/confirm delivery to ECA via the Internet. Delivery of proposal packages may not be made via local courier service or in person for this competition. Faxed documents will not be accepted at any time. Only proposals submitted as stated above will be considered. Important note: When preparing your submission please make sure to include one extra copy of the completed SF-424 form and place it in an envelope addressed to ``ECA/EX/PM''. The original and eight copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/A/S/X-06-09, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547. Applicants submitting hard-copy applications must also submit the ``Executive Summary'' and ``Proposal Narrative'' sections of the proposal in text (.txt) format on a PC-formatted disk. The Bureau will provide these files electronically to the appropriate Public Affairs Sections at the U.S. embassies for their review. IV.3f.2. Submitting Electronic Applications. Applicants have the option of submitting proposals electronically through Grants.gov (http://www.grants.gov). Complete solicitation packages are available at Grants.gov in the ``Find'' portion of the system. Please follow the instructions available in the ``Get Started'' portion of the site (http://www.grants.gov/GetStarted). Applicants have until midnight (12 a.m.) of the closing date to ensure that their entire application has been uploaded to the grants.gov site. Applications uploaded to the site after midnight of the application deadline date will be automatically rejected by the grants.gov system, and will be technically ineligible. Applicants will receive confirmation e-mail from grants.gov upon the successful submission of an application. ECA will not notify you upon receipt of electronic applications. IV.3g. Intergovernmental Review of Applications: Executive Order 12372 does not apply to this program. V. Application Review Information V.1. Review Process The Bureau will review all proposals for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. The program office, as well as the Public Diplomacy section overseas, where appropriate will review all eligible proposals. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Assistant Secretary for Educational and Cultural Affairs. Final technical authority for assistance awards (cooperative agreements) resides with the Bureau's Grants Officer. Review Criteria Technically eligible applications will be competitively reviewed according to the criteria stated below. These criteria are not rank ordered and all carry equal weight in the proposal evaluation: 1. Program Development and Management: The proposal narrative should exhibit originality, substance, precision, and relevance to the Bureau's mission as well as the objectives of the program. The proposal should demonstrate substantive expertise in the development of English as a Foreign language and conflict resolution programs for educators. Proposals should illustrate effective use of community and regional resources to enhance the educational and cultural expertise of the participants. The program plan should be well conceived. Administrative resources should be adequate to support effective project administration. 2. Ability to achieve program objectives: Objectives should be reasonable, feasible, and flexible. Proposals should clearly demonstrate how the institution will meet the program objectives. 3. Support of Diversity: Proposals should demonstrate substantive support of the Bureau's policy on diversity. Achievable and relevant features should be cited in both program administration (staffing, program venue and program evaluation) and program content (orientation and workshop sessions, program meetings, resource materials and follow- up activities). 4. Institutional Capacity and Record: Proposals should demonstrate an institutional record of successful exchange programs, including responsible fiscal management and full compliance with all reporting requirements for past Bureau grants as determined by Bureau Grants Staff. Proposed personnel and institutional resources should be adequate and appropriate to achieve the program's goals. 5. Project Evaluation: Proposals should include a plan to evaluate the [[Page 24895]] project's success, both as the activities unfold and at the end of the program. Draft survey questionnaires or other techniques plus description of methodologies to use to link outcomes to original project objectives are recommended. Successful applicants will be expected to submit intermediate reports after the U.S.-based training program, and other project components are concluded, or quarterly, whichever is less frequent. 6. Cost-effectiveness and Cost Sharing: The overhead and administrative components of the proposal, including salaries and honoraria, should be kept as low as possible. All other items should be necessary and appropriate. Proposals should maximize cost sharing through other private sector support as well as institutional direct funding contributions. 7. Follow-on and Alumni Activities: Proposals should provide a plan for continued follow-on activity (both with and without Bureau support) ensuring that the Professional Development Program for Indian and Pakistani Teachers is not an isolated event. VI. Award Administration Information VI.1a. Award Notices. Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures. Successful applicants will receive an Assistance Award Document (AAD) from the Bureau's Grants Office. The AAD and the original grant proposal with subsequent modifications (if applicable) shall be the only binding authorizing document between the recipient and the U.S. Government. The AAD will be signed by an authorized Grants Officer, and mailed to the recipient's responsible officer identified in the application. Unsuccessful applicants will receive notification of the results of the application review from the ECA program office coordinating this competition. VI.2. Administrative and National Policy Requirements Terms and Conditions for the Administration of ECA agreements include the following: Office of Management and Budget Circular A-122, ``Cost Principles for Nonprofit Organizations.'' Office of Management and Budget Circular A-21, ``Cost Principles for Educational Institutions.'' OMB Circular A-87, ``Cost Principles for State, Local and Indian Governments''. OMB Circular No. A-110 (Revised), Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and other Nonprofit Organizations. OMB Circular No. A-102, Uniform Administrative Requirements for Grants- in-Aid to State and Local Governments. OMB Circular No. A-133, Audits of States, Local Government, and Non- profit Organizations. Please reference the following Web sites for additional information: http://www.whitehouse.gov/omb/grants. http://exchanges.state.gov/education/grantsdiv/terms.htm#articleI. VI.3. Reporting Requirements You must provide ECA with a hard copy original plus one copy of the following reports: Intermediate reports after each project component (i.e., U.S.-based program and then workshops in India and Pakistan) or quarterly reports, whichever is less frequent and final program and financial report no more than 90 days after the expiration of the award. Cooperating institutions will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. (Please refer to Application and Submission Instructions (IV.3.d.3) above for Program Monitoring and Evaluation information.) All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request. All reports must be sent to the ECA Grants Officer and ECA Program Officer listed in the final assistance award document. VII. Agency Contacts For questions about this announcement, contact Program Officer Joan Zaffarano, Office of Global Educational Programs, Room 349, ECA/A/S/X- 06-09, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547; telephone (202) 453-8863; fax number (202) 453- 8890, and e-mail: [email protected]. All correspondence with the Bureau concerning this RFGP should reference the above title and number ECA/A/S/X-06-09. Please read the complete announcement before sending inquiries or submitting proposals. Once the RFGP deadline has passed, Bureau staff may not discuss this competition with applicants until the proposal review process has been completed. VIII. Other Information Notice The terms and conditions published in this RFGP are binding and may not be modified by any Bureau representative. Explanatory information provided by the Bureau that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements per section VI.3 above. Dated: April 21, 2006. C. Miller Crouch, Principal Deputy Assistant Secretary, Bureau of Educational and Cultural Affairs, Department of State. [FR Doc. E6-6359 Filed 4-26-06; 8:45 am] BILLING CODE 4710-05-P

usgpo

2024-10-08T14:08:34.867794

FR

FR-2006-04-27/E6-6357

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24895-24901] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6357] ----------------------------------------------------------------------- DEPARTMENT OF STATE [Public Notice 5396] Bureau of Educational and Cultural Affairs (ECA) Request for Grant Proposals: U.S-French Teachers-in-Training Program Announcement Type: Cooperative Agreement. Funding Opportunity Number: ECA/A/S/X-06-12. Catalog of Federal Domestic Assistance Number: 00.000 Application Deadline: May 31, 2006. Executive Summary: The Fulbright Teacher Exchange Branch in the Office of Global Educational Programs of the U.S. Department of State's Bureau of Educational and Cultural Affairs (ECA/A/S/X) announces an open competition for the U.S.-French Teachers-in-Training Program. Accredited, U.S. post-secondary educational institutions meeting the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3) may submit proposals to administer a three-month teacher exchange program for U.S. and French pre-service teachers. Post- secondary educational institutions may apply independently or in a consortium with other post-secondary institutions. The program will provide approximately 30-35 French pre-service teachers, who are expected to serve socio-economically disadvantaged students in France, with a three-to-four week orientation to American history, culture and society, provided through professional [[Page 24896]] development seminars in an academic setting, and a two-month practical component, provided through practice teaching experience under the guidance of experienced mentor teachers at a U.S. school. Interested institutions should document strong contacts with local school districts in the United States in order to provide the practical student-teaching component for French pre-service teachers and a demonstrated ability to conduct a substantive seminar in an academic setting. The program will also provide a reciprocal program for U.S. pre-service teachers. In cooperation with the French Ministry of Education, with support from the Franco-American Commission for Educational Exchange (Fulbright Commission), the cooperating institution will recruit and select 30-35 U.S. pre-service or in- service teachers, and provide a pre-departure orientation and short- term French language training. The French partners will arrange an in- country orientation and a three-month student teaching internship for U.S. teachers. The total grant award for all program and administrative expenses will be approximately $350,000. I. Funding Opportunity Description I.1. Authority Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87- 256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is ``to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * *; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.'' The funding authority for the program above is provided through legislation. I.2 Purpose Overview I.2a. Program Goals: 1. Contribute to mutual understanding between France, a key U.S. partner and ally, and the United States. 2. Provide French teachers in training, especially those who plan to teach in diverse schools, a better understanding of U.S. society, history, and culture. 3. Provide opportunities for students in French schools to learn first hand about U.S. society, history and culture from young American future teachers. 4. Expose U.S. student teachers to greater understanding of another culture and society. 5. Provide opportunities for schools in France and in the United States to develop long-lasting ties and to share educational best practices, including strategies for teaching in multi-cultural classrooms. In the long-term, this program is expected to assist French and American educators as they prepare students to live in an increasingly interdependent world. I.2b. French participants: French participants will be in their final year of post-baccalaureate training at one of six schools of education (Instituts Universitaires de Formation de Maitres): Orl[eacute]ans-Tours, Champagne-Ardenne, Paris, Midi- Pyr[eacute]n[eacute]es, Versailles, and Alsace. They will be in their first year of practice teaching and will be expected to pass their final practical examination in France in early June 2007. It is anticipated that all participants, early in their careers, will teach in schools that serve economically disadvantaged and/or diverse socio- economic sectors. The French Ministry of Education and the U.S. Embassy in France, with support from the Fulbright Commission, will recruit and select these students. I.2c. U.S. participants: U.S. participants will be education students at the undergraduate or graduate level who are ready to begin student teaching. The cooperating institution will recruit and select U.S. participants in coordination with the Fulbright Teacher Exchange Branch, the U.S. Embassy in France and the French Ministry of Education. The French partners will organize an orientation in France with input from the cooperating institution and will place participants in teaching internships in French schools. Participants will teach in or conduct outreach activities in a variety of schools, including those in ``priority education areas,'' which are defined in terms of socio- economic backgrounds. Most U.S. participants will student teach in schools where U.S. history, geography and related subjects are taught and where English is used in the classroom. While fluency in French is not required, those teachers with some facility in the French language will be given preference. U.S. participants must reflect the diversity of American society (including, but not limited to geographic, gender, racial, ethnic, and socio-economic diversity). I.2d. Guidelines: The cooperating institution should conduct a short planning visit to France to consult with representatives from the U.S. Embassy, the French Ministry of Education, the Fulbright Commission, and local educators. Based on assessments made during this planning visit, the cooperating institution will develop a detailed schedule and curriculum for the U.S.-based program and will discuss with French partners the development of the program for U.S. participants. The cooperating institution, in collaboration with the Ministry of Education, should develop a process to assist French participants in receiving official recognition for their exchange, as well as a process for American participants to receive academic credit through the U.S. host institution. I.2e. Program components for French participants: Pre-departure orientation (2-4 days): The U.S. Embassy in France, in collaboration with the Fulbright Commission, will organize an orientation with substantial input and participation from the cooperating institution. The orientation will provide information about the program, the program's goals, and expectations of participants. At the orientation, organizers will seek input from the participants about the needs of local teachers, review comparative teaching practices, and address issues about participants' stay in the U.S. U.S.-based seminar (3-4 weeks or the equivalent): The cooperating institution should design and conduct an academically sound seminar on U.S. history, culture and society to complement the school- based training. The seminar should have a strong contemporary focus and provide an introduction to the U.S. education system, American culture, including a cross-cultural adjustment seminar, and the U.S. government as it relates to education. It should include a basic introduction to American life and customs, particularly common practices in U.S. schools and efforts to eliminate educational inequity. While U.S. teaching methodology should not be the primary focus of this component, participants should be exposed to current issues in the U.S. including: federalism, diversity, the role of religion, politics, U.S. history, mass media, economics, literature, and fine arts. Site visits to schools (2-3 days or the equivalent): School visits should expose participants to different levels and types of schools (public, private, [[Page 24897]] charter, rural, inner city, ethnically and socio-economically diverse). Internships in high schools (maximum 8 weeks): French teachers should be placed in small groups (5-10 people) at local schools, paired with experienced U.S. teachers whose academic specialization matches their own. Internship activities should immerse student teachers actively in the American classroom environment and may include: observing a variety of classroom activities (active classroom, group projects, etc.); working individually with a mentor teacher on curriculum development; and team teaching. French teachers must spend at least six hours per week conducting classes independently. Exposure to local school governance: Teachers should attend faculty, board of education, and PTA meetings. Final debriefing (1-2 days): Student teachers will share what they have observed and learned, perhaps through presentations they make to each other within the group. The debriefing will also offer a framework for integrating the training and its objectives into participants' previous background, and promote strategies for them to share their knowledge with professional counterparts and their own students on their return. Curriculum development project: By the end of the program, the student teachers should complete a project incorporating an idea or concept that they will put into practice when they begin teaching. Cultural experiences: The project should provide opportunities for participants to interact with the local community and non-school-based groups, including home stays, to experience activities reflecting the diversity of American society, and to make presentations to local schools or community groups about French society and culture. Washington program (2-3 days): The participants should travel to Washington for a professional and cultural program to include meetings with the Bureau of Educational and Cultural Affairs, the French Embassy, and Department of Education representatives. I.2.f. Cooperating institution's responsibilities for French student teachers: Plan and implement the exchange program, including both the academic and practical components. Identify school districts to host groups for internships (schools should submit a brief proposal outlining their interest, understanding of goals, examples of best practices, and commitment to mentoring). School districts should be within driving distance of the host university (and/or its partner universities). Schools should designate an experienced mentor teacher to oversee the day-to-day activities of the participants. Assist with pre-departure orientation in France, conduct debriefing. Prepare DS-2019 forms. Administer logistics for French participants: transportation to local schools and training sites, enrollment in Bureau health insurance program, U.S. government forms--DS-2019, tax, social security, etc. Arrange for housing, which should include a home stay for at least some portion of the exchange visit; I.2g. Cooperating institution's responsibilities for U.S. student teachers: Selection: Design application forms and publicity materials, recruit, and select U.S. participants in coordination with the Office of Global Educational Programs. Pre-departure orientation (two to three days): Provide introduction to French society and culture, including diversity issues, government and education system and a cross-cultural adjustment seminar. Establish guidelines and expectations for U.S. participants. Short-term language training in the U.S. (three to four weeks or equivalent): Depending on the language level of U.S. participants, provide an introduction to French vocabulary related to schools and education. Training may be conducted using distance education technology. Travel of U.S. participants: Purchase airline tickets and enrollment in Bureau health insurance for U.S. grantees. I.2.h. General Responsibilities: Coordinate with various partners, including the U.S. Embassy in France, the French Ministry of Education, the Fulbright Commission, and the Fulbright Teacher Exchange Branch in the Bureau of Educational and Cultural Affairs regarding all activities, reporting and evaluation. The proposal should address mechanisms for communication and coordination; Monitor and evaluate the program; Administer all financial aspects of the program and comply with reporting requirements; Plan follow-on activities with host schools and participants. Please note that international tickets for French participants will be arranged and funded by the French Ministry of Education. French participants will receive a stipend from the French Ministry of Education and will be responsible for their own meals and incidental expenses. A strong proposal will address follow-on activities in conjunction with the Fulbright Commission and host schools in the United States and France to increase future impact and participant support. The agreement will begin on, or about, September 1, 2006 and the cooperating institution should complete all exchange activities by June 30, 2008. The program for French teachers should be from January to March 2007. The U.S. group may be planned for spring or fall 2007. Please refer to additional program specific guidelines in the Project Objectives, Goals, and Implementation (POGI) document. Programs must comply with J-1 visa regulations. Please refer to the Solicitation Package for further information. In a cooperative agreement, ECA/A/S/X will be substantially involved in the program activities mentioned above and beyond routine grant monitoring. ECA/A/S/X activities and responsibilities for this program are as follows: Formulation of program policy; Clearing texts and program guidelines for publication; In cooperation with U.S. Embassy and Fulbright Commission, oversee selection of U.S. participants; Oversight of the content for all orientations as well as review and approval of program schedules; II. Award Information Type of Award: New Cooperative Agreement. ECA's level of involvement in this program is listed under number I above. Fiscal Year Funds: FY 06. Approximate Total Funding: $350,000. Approximate Number of Awards: 1. Approximate Average Award: Pending availability of funds, $350,000. Anticipated Award Date: September 1, 2006. Anticipated Project Completion Date: June 30, 2008. Additional Information: Pending successful implementation of this program and the availability of funds in subsequent fiscal years, it is ECA's intent to renew this agreement for two additional fiscal years, before openly competing it again. III. Eligibility Information III.1. Eligible Applicants Applications may be submitted by accredited, post-secondary educational [[Page 24898]] institutions meeting the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3). III.2. Cost Sharing or Matching Funds There is no minimum or maximum percentage required for this competition. However, the Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs. When cost sharing is offered, it is understood and agreed that the applicant must provide the amount of cost sharing as stipulated in its proposal and later included in an approved grant agreement. Cost sharing may be in the form of allowable direct or indirect costs. For accountability, you must maintain written records to support all costs which are claimed as your contribution, as well as costs to be paid by the Federal government. Such records are subject to audit. The basis for determining the value of cash and in-kind contributions must be in accordance with OMB Circular A-110, (Revised), Subpart C.23--Cost Sharing and Matching. In the event you do not provide the minimum amount of cost sharing as stipulated in the approved budget, ECA's contribution will be reduced in like proportion. III.3. Other Eligibility Requirements (a) Bureau grant guidelines require that organizations with less than four years experience in conducting international exchanges be limited to $60,000 in Bureau funding. ECA anticipates awarding one grant, in an amount up to $350,000 to support program and administrative costs required to implement this exchange program. Therefore, organizations with less than four years experience in conducting international exchanges are ineligible to apply under this competition. The Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs. IV. Application and Submission Information Note: Please read the complete announcement before sending inquiries or submitting proposals. Once the RFGP deadline has passed, Bureau staff may not discuss this competition with applicants until the proposal review process has been completed. IV.1. Contact Information To Request an Application Package Please contact the Office of Global Educational Programs, ECA/A/S/ X, Room 349, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, tel. (202) 453-8897, fax (202) 453-8890, or e- mail [email protected] to request a Solicitation Package. Please refer to the Funding Opportunity Number ECA/A/S/X 06-12 located at the top of this announcement when making your request. Alternatively, an electronic application package may be obtained from grants.gov. Please see section IV.3f for further information. The Solicitation Package contains the Proposal Submission Instruction (PSI) document which consists of required application forms, and standard guidelines for proposal preparation. It also contains the Project Objectives, Goals and Implementation (POGI) document, which provides specific information, award criteria and budget instructions tailored to this competition. Please specify ECA/A/S/X Program Officer Catharine Cashner and refer to the Funding Opportunity Number (ECA/A/S/X 06-12) located at the top of this announcement on all other inquiries and correspondence. IV.2. To Download a Solicitation Package Via Internet The entire Solicitation Package may be downloaded from the Bureau's Web site at http://exchanges.state.gov/education/rfgps/menu.htm, or from the Grants.gov Web site at http://www.grants.gov. Please read all information before downloading. IV.3. Content and Form of Submission Applicants must follow all instructions in the Solicitation Package. The application should be submitted per the instructions under IV.3f. ``Application Deadline and Methods of Submission'' section below. IV.3a. You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the U.S. Government. This number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access http://www.dunandbradstreet.com or call 1-866-705- 5711. Please ensure that your DUNS number is included in the appropriate box of the SF-424 which is part of the formal application package. IV.3b. All proposals must contain an executive summary, proposal narrative and budget. Please refer to the Solicitation Package. It contains the mandatory Proposal Submission Instructions (PSI) document and the Project Objectives, Goals and Implementation (POGI) document for additional formatting and technical requirements. IV.3c. You must have nonprofit status with the IRS at the time of application. If your organization is a private nonprofit which has not received a grant or cooperative agreement from ECA in the past three years, or if your organization received nonprofit status from the IRS within the past four years, you must submit the necessary documentation to verify nonprofit status as directed in the PSI document. Failure to do so will cause your proposal to be declared technically ineligible. IV.3d. Please take into consideration the following information when preparing your proposal narrative: IV.3d.1. Adherence to All Regulations Governing the J Visa The Bureau of Educational and Cultural Affairs is placing renewed emphasis on the secure and proper administration of Exchange Visitor (J visa) Programs and adherence by grantees and sponsors to all regulations governing the J visa. Therefore, proposals should demonstrate the applicant's capacity to meet all requirements governing the administration of the Exchange Visitor Programs as set forth in 22 CFR 62, including the oversight of Responsible Officers and Alternate Responsible Officers, screening and selection of program participants, provision of pre-arrival information and orientation to participants, monitoring of participants, proper maintenance and security of forms, record-keeping, reporting and other requirements. The Grantee will be responsible for issuing DS-2019 forms to participants in this program. A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at http://exchanges.state.gov or from: United States Department of State, Office of Exchange Coordination and Designation, ECA/EC/ECD--SA-44, Room 734, 301 4th Street, SW., Washington, DC 20547. Telephone: (202) 203-5029. FAX: (202) 453-8640. Please refer to Solicitation Package for further information. IV.3d.2. Diversity, Freedom and Democracy Guidelines Pursuant to the Bureau's authorizing legislation, programs must maintain a non-political character and should be balanced and representative of the diversity of American political, social, and cultural life. ``Diversity'' should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, [[Page 24899]] religion, geographic location, socio-economic status, and disabilities. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the ``Support for Diversity'' section for specific suggestions on incorporating diversity into your proposal. Public Law 104-319 provides that ``in carrying out programs of educational and cultural exchange in countries whose people do not fully enjoy freedom and democracy,'' the Bureau ``shall take appropriate steps to provide opportunities for participation in such programs to human rights and democracy leaders of such countries.'' Public Law 106-113 requires that the governments of the countries described above do not have inappropriate influence in the selection process. Proposals should reflect advancement of these goals in their program contents, to the full extent deemed feasible. IV.3d.3. Program Monitoring and Evaluation Proposals must include a plan to monitor and evaluate the project's success, both as the activities unfold and at the end of the program. The Bureau recommends that your proposal include a draft survey questionnaire or other technique plus a description of a methodology to use to link outcomes to original project objectives. The Bureau expects that the grantee will track participants or partners and be able to respond to key evaluation questions, including satisfaction with the program, learning as a result of the program, changes in behavior as a result of the program, and effects of the program on institutions (institutions in which participants work or partner institutions). The evaluation plan should include indicators that measure gains in mutual understanding as well as substantive knowledge. Successful monitoring and evaluation depend heavily on setting clear goals and outcomes at the outset of a program. Your evaluation plan should include a description of your project's objectives, your anticipated project outcomes, and how and when you intend to measure these outcomes (performance indicators). The more that outcomes are ``smart'' (specific, measurable, attainable, results-oriented, and placed in a reasonable time frame), the easier it will be to conduct the evaluation. You should also show how your project objectives link to the goals of the program described in this RFGP. Your monitoring and evaluation plan should clearly distinguish between program outputs and outcomes. Outputs are products and services delivered, often stated as an amount. Output information is important to show the scope or size of project activities, but it cannot substitute for information about progress towards outcomes or the results achieved. Examples of outputs include the number of people trained or the number of seminars conducted. Outcomes, in contrast, represent specific results a project is intended to achieve and is usually measured as an extent of change. Findings on outputs and outcomes should both be reported, but the focus should be on outcomes. We encourage you to assess the following four levels of outcomes, as they relate to the program goals set out in the RFGP (listed here in increasing order of importance): 1. Participant satisfaction with the program and exchange experience. 2. Participant learning, such as increased knowledge, aptitude, skills, and changed understanding and attitude. Learning includes both substantive (subject-specific) learning and mutual understanding. 3. Participant behavior, concrete actions to apply knowledge in work or community; greater participation and responsibility in civic organizations; interpretation and explanation of experiences and new knowledge gained; continued contacts between participants, community members, and others. 4. Institutional changes, such as increased collaboration and partnerships, policy reforms, new programming, and organizational improvements. Please note: Consideration should be given to the appropriate timing of data collection for each level of outcome. For example, satisfaction is usually captured as a short-term outcome, whereas behavior and institutional changes are normally considered longer- term outcomes. Overall, the quality of your monitoring and evaluation plan will be judged on how well it (1) Specifies intended outcomes; (2) gives clear descriptions of how each outcome will be measured; (3) identifies when particular outcomes will be measured; and (4) provides a clear description of the data collection strategies for each outcome (i.e., surveys, interviews, or focus groups). (Please note that evaluation plans that deal only with the first level of outcomes [satisfaction] will be deemed less competitive under the present evaluation criteria.) Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request. IV.3d.4. Describe your plans for overall program management, staffing, and coordination with ECA/A/S/X. ECA/A/S/X considers program management, staffing and coordination with the Department of State essential elements of your program. Please be sure to give sufficient attention to these elements in your proposal. Please refer to the Technical Eligibility Requirements and the POGI in the Solicitation package for specific guidelines. Describe your plans for: i.e. sustainability, overall program management, staffing, coordination with ECA and PAS or any other requirements etc. IV.3e. Please take the following information into consideration when preparing your budget: IV.3e.1. Applicants must submit a comprehensive budget for the entire program. The budget should not exceed $350,000 for program and administrative costs. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may provide separate sub-budgets for each program component, phase, location, or activity to provide clarification. IV.3e.2. Allowable costs for the program include the following: (1) International Travel. (2) Costs for U.S. Competition. (3) U.S. Ground Transportation. (4) Orientation and Professional Development Seminar (instruction, materials, logistics). (5) Host schools (administrative costs). (6) Participant lodging and per diem. (7) Cultural Activities. (8) Book Allowance/Shipping. (9) Grantee Administrative Costs. Please refer to the Solicitation Package for complete budget guidelines and formatting instructions. IV.3f. Application Deadline and Methods of Submission Application Deadline Date: May 31, 2006. Reference No: ECA/A/S/X-06-12. Explanation of Deadlines: IV.3f.1. Applications may be submitted in one of two ways 1. In hard-copy, via a nationally recognized overnight delivery service (i.e., DHL, Federal Express, UPS, Airborne Express, or U.S. Postal Service Express Overnight Mail, etc.), or 2. Electronically through http://www.grants.gov. [[Page 24900]] Along with the Project Title, all applicants must enter the above Reference Number in Box 11 on the SF-424 contained in the mandatory Proposal Submission Instructions (PSI) of the solicitation document. IV.3f.2. Submitting Printed Applications Applications must be shipped no later than the above deadline. Delivery services used by applicants must have in-place, centralized shipping identification and tracking systems that may be accessed via the Internet and delivery people who are identifiable by commonly recognized uniforms and delivery vehicles. Proposals shipped on or before the above deadline but received at ECA more than seven days after the deadline will be ineligible for further consideration under this competition. Proposals shipped after the established deadlines are ineligible for consideration under this competition. ECA will not notify you upon receipt of application. It is each applicant's responsibility to ensure that each package is marked with a legible tracking number and to monitor/confirm delivery to ECA via the Internet. Delivery of proposal packages may not be made via local courier service or in person for this competition. Faxed documents will not be accepted at any time. Only proposals submitted as stated above will be considered. Important note: When preparing your submission please make sure to include one extra copy of the completed SF-424 form and place it in an envelope addressed to ``ECA/EX/PM''. The original and eight copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/A/S/X-06-04, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547. Applicants submitting hard-copy applications must also submit the ``Executive Summary'' and ``Proposal Narrative'' sections of the proposal in text (.txt) format on a PC-formatted disk. The Bureau will provide these files electronically to the appropriate Public Affairs Sections at the U.S. embassies for their review. IV.3f.2. Submitting Electronic Applications Applicants have the option of submitting proposals electronically through Grants.gov (http://www.grants.gov). Complete solicitation packages are available at Grants.gov in the ``Find'' portion of the system. Please follow the instructions available in the `Get Started' portion of the site (http://www.grants.gov/GetStarted). Applicants have until midnight (12 a.m.) of the closing date to ensure that their entire application has been uploaded to the grants.gov site. Applications uploaded to the site after midnight of the application deadline date will be automatically rejected by the grants.gov system, and will be technically ineligible. Applicants will receive confirmation e-mail from grants.gov upon the successful submission of an application. ECA will not notify you upon receipt of electronic applications. IV.3g. Intergovernmental Review of Applications Executive Order 12372 does not apply to this program. V. Application Review Information V.1. Review Process The Bureau will review all proposals for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. All eligible proposals will be reviewed by the program office, as well as the Public Diplomacy section overseas, where appropriate. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Assistant Secretary for Educational and Cultural Affairs. Final technical authority for assistance awards resides with the Bureau's Grants Officer. Review Criteria Technically eligible applications will be competitively reviewed according to the criteria stated below. These criteria are not rank ordered and all carry equal weight in the proposal evaluation: 1. Program planning: Detailed agenda and relevant work plan should demonstrate substantive expertise in professional development for student teachers and logistical capacity. The agenda and plan should illustrate effective use of community and regional resources to enhance participants' educational and cultural experiences. 2. Ability to achieve program objectives: Objectives should be reasonable, feasible, and flexible. Proposals should clearly demonstrate how the institution will meet the program's objectives and plan. 3. Multiplier effect/impact: Proposed programs should strengthen long-term mutual understanding, including maximum sharing of information and establishment of long-term institutional and individual linkages between U.S. and French schools. 4. Support of Diversity: Proposals should demonstrate substantive support of the Bureau's policy on diversity. Achievable and relevant features should be cited in both program administration (selection of participants, program venue and program evaluation) and program content (orientation and wrap-up sessions, program meetings, resource materials and follow-up activities) both in the United States and in France. 5. Institutional Capacity: Proposed personnel and institutional resources should be adequate and appropriate to achieve the program or project's goals. 6. Institution's Record/Ability: Proposals should demonstrate an institutional record of successful exchange programs, including responsible fiscal management and full compliance with all reporting requirements for past Bureau grants as determined by Bureau Grants Staff. The Bureau will consider the past performance of prior recipients and the demonstrated potential of new applicants. 7. Follow-on Activities: Proposals should provide a plan for continued follow-on activity ensuring that Bureau supported programs are not isolated events. 8. Project Evaluation: Proposals should include a plan to evaluate the activity's success, both as the activities unfold and at the end of the program. A draft survey questionnaire or other technique plus description of a methodology to use to link outcomes to original project objectives is recommended. 9. Cost-effectiveness/cost sharing: The overhead and administrative components of the proposal, including salaries and honoraria, should be kept as low as possible. All other items should be necessary and appropriate. Proposals should maximize cost-sharing through other private sector support, as well as institutional direct funding contributions. VI. Award Administration Information VI.1.a. Award Notices Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures. Successful applicants will receive an Assistance Award Document (AAD) from the Bureau's Grants Office. The [[Page 24901]] AAD and the original grant proposal with subsequent modifications (if applicable) shall be the only binding authorizing document between the recipient and the U.S. Government. The AAD will be signed by an authorized Grants Officer, and mailed to the recipient's responsible officer identified in the application. Unsuccessful applicants will receive notification of the results of the application review from the ECA program office coordinating this competition. VI.2. Administrative and National Policy Requirements Terms and Conditions for the Administration of ECA agreements include the following: Office of Management and Budget Circular A-122, ``Cost Principles for Nonprofit Organizations.'' Office of Management and Budget Circular A-21, ``Cost Principles for Educational Institutions.'' OMB Circular A-87, ``Cost Principles for State, Local and Indian Governments''. OMB Circular No. A-110 (Revised), Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and other Nonprofit Organizations. OMB Circular No. A-102, Uniform Administrative Requirements for Grants- in-Aid to State and Local Governments. OMB Circular No. A-133, Audits of States, Local Government, and Non- profit Organizations. Please reference the following Web sites for additional information: http://www.whitehouse.gov/omb/grants. http://exchanges.state.gov/education/grantsdiv/terms.htm#articleI. VI.3. Reporting Requirements You must provide ECA with a hard copy original plus one copy of the following reports: (1) A final program and financial report no more than 90 days after the expiration of the award; (2) Annual program report for the first year of the agreement. Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. (Please refer to IV. Application and Submission Instructions (IV.3.d.3) above for Program Monitoring and Evaluation information. All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request. All reports must be sent to the ECA Grants Officer and ECA Program Officer listed in the final assistance award document. VI.4. Optional Program Data Requirements Organizations awarded grants will be required to maintain specific data on program participants and activities in an electronically accessible database format that can be shared with the Bureau as required. As a minimum, the data must include the following: (1) Name, address, contact information and biographic sketch of all persons who travel internationally on funds provided by the grant or who benefit from the grant funding but do not travel. (2) Itineraries of international and domestic travel, providing dates of travel and cities in which any exchange experiences take place. Final schedules for in-country and U.S. activities must be received by the ECA Program Officer at least three work days prior to the official opening of the activity. VII. Agency Contacts For questions about this announcement, contact: Catharine Cashner, ECA/A/S/X, Room 349, ECA/A/S/X 06-12, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, tel. (202) 453-8880, fax (202)453-8890. All correspondence with the Bureau concerning this RFGP should reference the above title and number ECA/A/S/X 06-12. Please read the complete Federal Register announcement before sending inquiries or submitting proposals. Once the RFGP deadline has passed, Bureau staff may not discuss this competition with applicants until the proposal review process has been completed. VIII. Other Information Notice The terms and conditions published in this RFGP are binding and may not be modified by any Bureau representative. Explanatory information provided by the Bureau that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements per section VI.3 above. Dated: April 21, 2006. C. Miller Crouch, Principal Deputy Assistant Secretary, Bureau of Educational and Cultural Affairs, Department of State. [FR Doc. E6-6357 Filed 4-26-06; 8:45 am] BILLING CODE 4710-05-P

usgpo

2024-10-08T14:08:34.884140

FR

FR-2006-04-27/E6-6346

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24901-24902] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6346] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Office of the Secretary Aviation Proceedings, Agreements Filed the Week Ending March 31, 2006 The following Agreements were filed with the Department of Transportation under the sections 412 and 414 of the Federal Aviation Act, as amended (49 U.S.C. 1382 and 1384) and procedures governing proceedings to enforce these provisions. Answers may be filed within 21 days after the filing of the application. Docket Number: OST-2006-24303. Date Filed: March 28, 2006. Parties: Members of the International Air Transport Association. Subject: TC12 North Atlantic-Africa except between USA and Reunion. Memo 0235 dated 23 February 2006. Minutes: TC12 North/Mid/South Atlantic-Africa. Memo 0240 dated 3 March 2006. Fares: TC12 North Atlantic-Africa. Specified fare table. Memo 0112 dated 28 February 2006. Technical Correction: TC12 North Atlantic-Africa except between USA and Reunion. Memo 0239 dated 3 March 2006. Intended effective date: 1 May 2006. Docket Number: OST-2006-24308. Date Filed: March 28, 2006. Parties: Members of the International Air Transport Association. Subject: TC12 North Atlantic-Africa between USA and Reunion. Memo 0236 dated 23 February 2006. Minutes: TC12 North/Mid/South Atlantic-Africa. Memo 0240 dated 3 March 2006. Fares: TC12 North Atlantic-Africa. Specified fare table. Memo 0112 dated 28 February 2006. Intended effective date: 1 May 2006. Docket Number: OST-2006-24311. Date Filed: March 29, 2006. Parties Members of the International Air Transport Association. Subject: TC12 Mid Atlantic-Africa. Memo 0237 dated 23 February 2006. Minutes: TC12 North/Mid/South Atlantic-Africa. Memo 0240 dated 3 March 2006. [[Page 24902]] Fares: TC12 Mid Atlantic-Africa. Specified fare table. Memo 0111 dated 28 February 2006. Intended effective date: 1 May 2006. Docket Number: OST-2006-24312. Date Filed: March 29, 2006. Parties: Members of the International Air Transport Association. Subject: TC12 South Atlantic-Africa. Memo 0238 dated 23 February 2006. Minutes: TC12 North/Mid/South Atlantic-Africa. Memo 0240 dated 3 March 2006. Fares: TC12 South Atlantic-Africa. Specified fare table. Memo 0110 dated 28 February 2006. Intended effective date: 1 May 2006. Docket Number: OST-2006-24313. Date Filed: March 29, 2006. Parties: Members of the International Air Transport Association. Subject: TC3 South East Asia-South West Pacific between Malaysia and American Samoa. Singapore, 21 November-30 November 2005. Intended effective date: 1 April 2006 (Memo 0924). Minutes: TC3 South East Asia-South West Pacific between Malaysia and American Samoa. Singapore, 21 November-30 November 2005 (Memo 0943). Fares: TC3 South East Asia-South West Pacific between Malaysia and American Samoa. Singapore, 21 November-30 November 2005. Specified fare tables. Intended effective date: 1 April 2006 (Memo 0383). Docket Number: OST-2006-24339. Date Filed: March 30, 2006. Parties: Members of the International Air Transport Association. Subject TC2 Passenger Tariff Coordinating Conferences. TC2 Europe-Africa Resolutions. Memo PTC2 EUR-AFR 0234 dated 24 February 2006. Minutes: TC2 Within Africa, Europe-Africa, and Middle East-Africa Minutes Memo 0235. Tables: PTC2 EUR-AFR Fares 0134 dated 27 February 2006. Technical Correction: TC2 Europe-Africa Resolutions Memo PTC2 EUR-AFR 0236 dated 9 March 2006 Geneva, 20-23 February 2006. Intended effective date: 1 May 2006. Docket Number: OST-2006-24341. Date Filed: March 30, 2006. Parties: Members of the International Air Transport Association. Subject Tables: PTC12 USA-EUR Fares 0104 dated 29 March 2006. Resolution 015h- USA Add-Ons between USA and UK. Intended effective date: 1 April 2006. Renee V. Wright, Program Manager, Docket Operations, Federal Register Liaison. [FR Doc. E6-6346 Filed 4-26-06; 8:45 am] BILLING CODE 4910-9X-P

usgpo

2024-10-08T14:08:34.911585

FR

FR-2006-04-27/E6-6347

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24902] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6347] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Office of the Secretary Notice of Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B (Formerly Subpart Q) During the Week Ending March 31, 2006 The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier. Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201 et. seq.). The due date for Answers, Conforming Applications, or Motions to Modify Scope are set forth below for each application. Following the Answer period DOT may process the application by expedited procedures. Such procedures may consist of the adoption of a show-cause order, a tentative order, or in appropriate cases a final order without further proceedings. Docket Number: OST-2006-24295. Date Filed: March 27, 2006. Due Date for Answers, Conforming Applications, or Motion to Modify Scope:April 17, 2006. Description: Application of Independence Air, Inc. (``Independence Air'') and Compass Airlines, Inc. (``Compass'') requesting the transfer to Compass the certificate of public convenience and necessity issued to Independence Air by Order 2004-11-19 authorizing Independence Air to engage in interstate scheduled air transportation of persons, property and mail. Docket Number: OST-2006-24296. Date Filed: March 27, 2006. Due Date for Answers, Conforming Applications, or Motion to Modify Scope: April 17, 2006. Description: Application of Era Aviation, Inc. (``Applicant'') registering the elimination of the use of certain business names under which the Applicant desires to conduct its operations, and reissuance of its underlying certificate of public convenience and necessity in the single remaining corporate name, Era Aviation, Inc. Docket Number: OST-1999-5846. Date Filed: March 29, 2006. Due Date for Answers, Conforming Applications, or Motion to Modify Scope: April 19, 2006. Description: Supplement No. 4 of United Air Lines, Inc. to its pending application for renewal and amendment of its experimental certificate of public convenience and necessity for Route 566 (U.S.- Mexico) to include authority to carry persons, property and mail in foreign air transportation in foreign air transportation between Los Angeles and Cancun and between Chicago and Puerto Vallarta. Renee V. Wright, Program Manager, Docket Operations, Federal Register Liaison. [FR Doc. E6-6347 Filed 4-26-06; 8:45 am] BILLING CODE 4910-9X-P

usgpo

2024-10-08T14:08:34.941236

FR

FR-2006-04-27/06-3991

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24902-24903] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3991] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Notice of Submission Deadline for International Slots for the Winter 2006 Scheduling Season AGENCY: Department of Transportation, FAA. ACTION: notice of submission deadline. ----------------------------------------------------------------------- SUMMARY: On October 1, 1999, the FAA amended the regulations governing takeoff and landing slots and slot allocation procedures at certain High Density Traffic Airports as a result of the ``Open Transborder'' Agreement between the Government of the United States and the Government of Canada. One element of this final rule established that the deadline for submission of requests for international slots will be published in a Federal Register notice for each scheduling season. The purpose of the amendment is for the FAA deadline for international slots requests to coincide with the International Air Transport Association (IATA) deadline for submission of slot requests. In accordance with this amendment, the FAA announces in this notice that the deadline for submitting requests for international slots at John F. Kennedy International Airport (JFK) for allocation under 14 CFR 93.217 is May 11, 2006. The FAA will allocate international slots through December 31, 2006 only, as the High Density Rule expires at JFK on December 31, 2006. (See 49 U.S.C. 41715(a)(2).) After that date, slots will no longer be required for operation at JFK. The FAA has designated Chicago's O'Hare International Airport (O'Hare) as [[Page 24903]] a Level 2, Schedules Facilitated Airport under the IATA Guidelines and will review international operations based on runway parameters. The FAA requests carriers intending to conduct international service at O'Hare for the Winter 2006/07 Scheduling Season to submit their intended schedules following the same procedures used for submitting requests for slots at JFK. Carriers are advised that this notice does not alter or change any coordination procedures conducted by the City of Chicago for O'Hare's Terminal 5 facilities. Finally, the U.S. scheduling season is consistent with the changes in daylight savings time. In accordance with the Energy Policy Act of 2005 (Pub. L. 109-58), daylight savings time will begin on March 11, 2007 and end on November 3, 2007. The IATA Northern Winter Scheduling Season will end on March 24, 2007, and its Summer Scheduling Season will only begin on March 25, 2007. There is a two-week period for which the IATA Winter scheduling season will overlap with the U.S. summer scheduling season. We recognize this transition period will cause some carriers to adjust scheduled times based on their network requirements and other considerations. For O'Hare, the FAA will accept carriers' schedule requests for the entire IATA Northern Winter Scheduling Season (ending on March 24, 2007), even though that will be the first two weeks of the U.S. summer scheduling season. This will facilitate carriers seeking to confirm schedules at other worldwide slot coordinated airports in accordance with the IATA season and coordination process. Carriers should clearly indicate any schedule differences during the March 11 to 24, 2007, period. The FAA intends to provide the maximum practical flexibility to accommodate schedule adjustments during this period and does not anticipate any significant issues regarding historic rights due to the earlier introduction of daylight saving time in the U.S. A deadline for submitting the reamining summer schedules for 2007 will by announced in the Federal Register by September 2006. The Department of Transportation reserves the right to withhold the approval of schedules to any foreign air carrier of a country that does not provide equivalent rights of access to its airports for U.S. air carriers, as determined by the Secretary of Transportation. DATES: Requests for international slots must be submitted no later than May 11, 2006. ADDRESSES: Requests may be submitted by mail to Slot Administration Office, AGC-220 Office of the Chief Counsel, 800 Independence Ave., SW., Washington, DC 20591; facsimile: 202-267-7277; ARINC: DCAYAXD; or by e-mail to: [email protected]. FOR FURTHER INFORMATION CONTACT: Lorelei Peter, Regulations Division, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone number: 202- 267-3073. Issued in Washington, DC on April 24, 2006. James Whitlow, Deputy Chief Counsel. [FR Doc. 06-3991 Filed 4-26-06; 8:45 am] BILLING CODE 4910-13-M

usgpo

2024-10-08T14:08:34.955303

FR

FR-2006-04-27/06-3998

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24903-24908] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3998] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration [Docket No. FAA-2006-24508] Draft General Conformity Determination for Proposed Operations of Southwest Airlines Co. at Denver International Airport, Denver, CO AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of Draft General Conformity Determination. ----------------------------------------------------------------------- SUMMARY: The FAA is issuing this notice to advise the public that a Draft General Conformity Determination (DGCD) for Proposed Operations of Southwest Airlines Co. (Southwest) at Denver International Airport (DEN) has been prepared. In accordance with Section 176(c) of the Clean Air Act, FAA has assessed whether the emissions that would result from FAA's action in approving the proposed operation specifications (OpSpec) for Southwest's proposed operations at DEN conform with the Colorado State Implementation Plan (SIP). DATES: Submit comments on or before May 30, 2006. ADDRESSES: You may submit comments, identified by docket no. FAA-2006- 24508 by any of the following methods: DOT docket Web site: Go to http://dms.dot.gov and follow the instructions for sending your comments electronically. Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically. Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20591. Fax: (202) 493-2251. Hand delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. After all comments are reviewed and addressed, a notice of availability of the Final General Conformity Determination will be published. Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN). For Technical Information Contact: Joan Seward, All Weather Operations Program Manager, ASW-230.1, FAA SW Region Headquarters, 2601 Meacham Blvd., Fort Worth, TX 76137, telephone (817) 222-5278, e-mail: [email protected]. SUPPLEMENTARY INFORMATION: In December of 2005, Southwest announced its intent to begin scheduled service at DEN commencing in January 2006. As required by Title 14 of the Code of Federal Regulations (14 CFR) 119.51, Southwest applied to the FAA to amend Southwest's OpSpecs to include DEN, thereby authorizing Southwest to conduct DEN service. The request to the FAA detailed Southwest's startup plans, commencing on January 3, 2006, with 13 daily landing/take-off cycles (LTO),\1\ equating to a total of 26 operations, and contained other information for the FAA to conduct the environmental review required under the regulations implementing the National Environmental Policy Act (NEPA) (40 CFR 1500-1508), section 176(c) of the Clean Air Act (40 CFR 93.150 et seq.), and by FAA Order 1050.1E, Environmental Impacts: Policies and Procedures. At that time Southwest indicated an interest in increasing operations to as many as 50 or 60 daily operations at DEN, but agreed to maintain operations at DEN below de minimis levels until a General [[Page 24904]] Conformity Determination could be completed. --------------------------------------------------------------------------- \1\ For clarification, the phrase ``one round trip'' is synonymous with a landing/takeoff cycle (LTO). The LTO consists of an aircraft taxiing from the terminal gate area to the runway, taking off by accelerating down the runway until 1,000 feet off the ground, climbing to the altitude of the local mixing height, returning on approach by descending from the mixing height to the runway, and finally completing the cycle by taxiing from the runway to the gate. An aircraft operation is defined as either a landing or a takeoff. Therefore, one LTO cycle is equal to two aircraft operations. --------------------------------------------------------------------------- The FAA issued an OpSpec to Southwest for this initial level of activity accompanied by an environmental categorical exclusion dated December 14, 2005, determining that the daily 13 LTOs were below de minimis emission levels and were not regionally significant. Therefore, the no further determination was required under the General Conformity rule. Southwest subsequently announced a scheduled increase of service planned for March 2006 with an additional 9 daily LTOs, bringing the total expected daily LTOs to 22. This General Conformity Determination addresses FAA's proposed Federal action to amend Southwest's OpSpecs to accommodate future operations as high as 60 daily LTOs at DEN (hereto known as the ``Proposed Action''). The information presented in this DGCD demonstrates conformance with Colorado's SIPs and substantiates that the net emissions resulting from Southwest's increased service at DEN are not regionally significant. Air Quality Designations for the Denver Metropolitan Area DEN is owned and operated by the City and County of Denver, and is located within the Denver Metropolitan Area (DMA) for air quality planning purposes. The DMA is designated as attainment for the criteria pollutants sulfur dioxide (SO2), nitrogen dioxide (NO2), lead, and particulate matter with aerodynamic diameter of 2.5 micrometers or less (PM2.5). The DMA is an Environmental Protection Agency (EPA) designated attainment/maintenance area for the criteria pollutants carbon monoxide (CO), particulate matter with aerodynamic diameter of 10 micrometers or less (PM10), and the 1-hour ozone national ambient air quality standard (NAAQS). In addition, DEN is located in an Early Action Compact (EAC) area for the 8-hour ozone standard, which has a deferred air quality designation date of December 31, 2006. Pursuant to the Clean Air Act, Federal actions in nonattainment and maintenance areas are required to conform with SIPs to either bring an area into compliance with the NAAQS or maintain compliance with the NAAQS. FAA approval to amend Southwest's OpSpecs for DEN constitutes a Federal action required to conform to Colorado's SIPs for CO, PM10, and the EAC requirements for the 8-hour ozone standard. General Conformity Applicability Analysis Section 176(c) of the Clean Air Act prohibits the Federal government from engaging in, supporting, providing financial assistance for, licensing, permitting, or approving any activity that does not conform to an applicable implementation plan. A general conformity determination may be required for each pollutant where the net direct and indirect emissions in a nonattainment or maintenance area caused by the action exceed de minimis levels (40 CFR 93.151(b)). In addition to the de minimis applicability analysis, a conformity evaluation of Federal actions must also demonstrate the Proposed Action does not constitute a regionally significant action, which is defined as an action that contributes 10 percent or more of total basin-wide emissions. DMA's pollutants of concern for general conformity purposes include CO, PM10, and the precursors of ozone, namely volatile organic compounds (VOCs) and oxides of nitrogen (NOX).\2\ An analysis must be performed to determine if the net annual emissions of these pollutants resulting from the Proposed Action exceed General Conformity de minimis thresholds. For DMA, the General Conformity de minimis thresholds are 100 tons per year for each pollutant of concern. --------------------------------------------------------------------------- \2\ Ozone is formed in the atmosphere rather than being directly emitted from sources. Ozone forms as a result of volatile organic compounds (VOCs) and oxides of nitrogen (NOX) reacting in the presence of sunlight in the atmosphere. VOCs and NOX are termed ``ozone precursors'' and their emissions are regulated in order to control the creation of ozone. Aircraft engine emissions data is in the form of ``total hydrocarbons'' or HC. For the purposes of this analysis, HCs are conservatively assumed equivalent to VOCs. --------------------------------------------------------------------------- Emissions Inventory To determine the net effect of the proposed project, an emissions inventory of reasonably foreseeable, direct, and indirect emissions caused by the Federal action was performed to calculate the difference between the Proposed Action scenario--Southwest's foreseeable maximum activity level at DEN, and the No Action scenario--no service by Southwest at DEN.\3\ The evaluation was performed using the FAA's Emissions and Dispersion Modeling System (EDMS) version 4.4. Under the Proposed Action, no facility improvements would required (e.g., new parking facilities, aircraft gates, etc.) to accommodate the Proposed Project. Therefore, the sources considered in the emissions inventory were limited to aircraft operations and supporting equipment (ground support equipment (GSE) and auxiliary power unit (APU)), surface transportation, and parking lots. --------------------------------------------------------------------------- \3\ For the purposes of this analysis, FAA has taken the conservative approach of considering the No Action scenario to include no Southwest operations at DEN. Although Southwest began initial operations at DEN in January of 2005, Southwest agreed to limit operations to levels determined to be de minimis to accommodate the preparation of a General Conformity Determination of up to 60 LTO's per day. --------------------------------------------------------------------------- Aircraft and Supporting Equipment Emissions Under the No Action alternative, Southwest's operations would not be introduced at DEN, therefore no emissions from aircraft operations would occur. Similarly, no change in either APU emissions or (GSE) emissions would occur. Although the extent and timing of potential increases in Southwest's flight activity in the Proposed Project are imprecise, the airline's business plan indicates that earliest possible calendar year that the maximum foreseeable aircraft activity of 60 daily LTOs could be achieved is 2007. Under the Proposed Action scenario, aircraft emissions were quantified based on this maximum foreseeable level and conservatively assumed to occur every day of the year for a total of 10,950 LTOs per year. To match Southwest's fleet and registered engines, emissions were calculated from CFM56-3B1, CFM56-3B2, CFM56-7B22, and CFM56-7B24 engines proportionately to the number of aircraft/engine combinations registered in Southwest's national fleet (see Table 1). [[Page 24905]] Table 1.--Southwest Aircraft Information and Potential Maximum Activity at DEN ---------------------------------------------------------------------------------------------------------------- Percent of National national Maximum Maximum Aircraft type Engine quantity* fleet daily LTOs annual LTOs (percent) ---------------------------------------------------------------------------------------------------------------- B733/B735........................ CFM56-3B1................ 202 47.5 28 10,220 B733............................. CFM56-3B2................ 17 4.0 2 730 B737-700......................... CFM56-7B22............... 204 48.0 29 10,585 B737-700......................... CFM56-7B24............... 2 0.5 1 365 ------------------------------------------------------------------------------ Totals....................... ......................... 425 100 60 21,900 ---------------------------------------------------------------------------------------------------------------- * BACK database, April 2005. Southwest has indicated that it will use the available gate electrification at DEN. Gate electrification supplies power to an aircraft while parked at airport gates by enabling connection of the aircraft's systems to 400hz electrical power. The result is that the use of the aircraft's auxiliary power units (APUs) is reduced, which, in turn, reduces the associated combustion pollutants. Typically, with gate electrification, APU usage is minimized to approximately 8 minutes per LTO. Southwest employs Allied Signal model GTCP85-129 APUs on their B737-300s and Allied Signal model 1319B APUs on their B737-700s. Southwest has identified the individual types and quantities of ground support equipment (GSE), and time duration dedicated to each aircraft LTO. Table 2 presents the GSE information that was used to calculate emissions for the Proposed Action scenario. Table 2.--Southwest GSE Fleet Information per LTO at DEN ------------------------------------------------------------------------ Minutes of operation GSE description Quantity Fuel per vehicle per LTO ------------------------------------------------------------------------ Aircraft Tug................ 1 Diesel.......... 5 Baggage Tug................. 2 Electric........ 20 Lavatory Truck.............. 1 Diesel.......... 10 Baggage Belt Loader......... 2 Diesel.......... 20 Hydrant Fueling Truck....... 1 Diesel.......... 10 ------------------------------------------------------------------------ Source: Southwest Airlines, 2005. Surface Transportation Emissions Under the No Action alternative, Southwest's operations would not be introduced at DEN, therefore no additional emissions from increased surface transportation to/from DEN would occur. As a result of the Proposed Action, the employees of Southwest Airlines will induce new origin and destination (O&D) traffic to and from DEN. Over the years, the City and County of Denver has worked with the Denver Regional Council of Governments (DRCOG), which is the metropolitan planning organization (MPO) for the DMA, to include airport-related O&D traffic and emissions in DRCOG's regional traffic and air quality models, respectively. DRCOG estimates and forecasts vehicle miles traveled (VMT) for the region by compiling traffic data, population data, and employment data. Specifically, DRCOG estimates O&D traffic for DEN based upon data supplied by the City and County of Denver. DRCOG then models all traffic and associated emissions for transportation conformity purposes. This General Conformity Determination does not include emissions from Southwest Airlines employee traffic because DRCOG and the City and County of Denver have already taken steps to ensure that future employee traffic, such as Southwest's, and the associated future emissions are included in the conforming regional transportation plan for the DMA. Parking Lot Emissions In the No Action alternative, no additional parking lot emissions would be generated from passengers or Southwest employees. The increase in parking lot emissions resulting from the increased Southwest employee vehicular traffic to DEN associated with the proposed action was calculated using the assumption that each proposed Southwest employee would arrive and depart DEN daily in the employee's own vehicle. Results of the Emissions Inventory For determining general conformity applicability, the net increases of each pollutant of concern, if any, is determined by calculating the difference in emissions between the Proposed Action--taking into account not only additional emissions resulting from the action itself, but also any decreases in emissions which may result--and the No Action alternative. Table 3 presents the total emissions increase from the Proposed Action and the comparison to the General Conformity de minimis thresholds. The Proposed Action exceeds the de minimis thresholds for the pollutants of CO and NOX. As a result, a General Conformity determination is required.\4\ --------------------------------------------------------------------------- \4\ Although not required because emissions are above de minimis, Table 4 provides the estimated emission contributions from the Proposed Action in comparison to the regional budget levels from the various SIP documents, both existing and future plans. The common assumption in these values is that the annual tons of emissions estimated from the Proposed Action are evenly distributed across 365 days of the year. The FAA is aware that contribution of emissions from the proposed Southwest activity will vary by day, week, month, and season. However, the overall daily emission contributions from the Proposed Action is so low relative to regional inventories that further estimates of daily emission contributions from the Proposed Action will not change the determination. Therefore, the emissions from the Proposed Action are not regionally significant. [[Page 24906]] Table 3.--Net Emission Increases From the Proposed Action and Comparison to De Minimis Thresholds [Tons per year] ---------------------------------------------------------------------------------------------------------------- Category CO VOC NOX SOX PM10/PM2.5 ---------------------------------------------------------------------------------------------------------------- Aircraft........................ 260.798 22.754 195.110 19.413.............. 2.199 APU............................. 3.999 0.269 2.052 0.358............... unavailable GSE............................. 2.543 0.660 6.889 1.216............... 0.530 Parking......................... <0.001 <0.001 <0.001 <0.001.............. <0.001 Total....................... 267.339 23.682 204.051 20.985.............. 2.728 ���������������������������������------------------------------------------------------------------------------- de minimis threshold............ 100 100 100 not applicable...... 100 ---------------------------------------------------------------------------------------------------------------- Source: FAA Emissions Dispersion Modeling System version 4.4. Table 4.--Comparison of Proposed Action Emissions to the SIP Regional Inventories -------------------------------------------------------------------------------------------------------------------------------------------------------- Is the Daily Original SIP SIP proposed Pollutants of concern Units emissions from maintenance maintenance action proposed plan plan update regionally action significant? -------------------------------------------------------------------------------------------------------------------------------------------------------- CO........................................... (tons/day)............................... 0.732 1,125.4 to 1,736.9 to No. 1,203.3 1,864.9 PM10......................................... (tons/winter day)........................ 0.007 66.9 to 95.6 62.3 to 107.5 No. VOC.......................................... (tons/summer day)........................ 0.065 459 to 507 NA No. NOX.......................................... (tons/summer day)........................ 0.559 308 to 332 303.3 to No. 353.3* -------------------------------------------------------------------------------------------------------------------------------------------------------- * Updated regional NOX values were listed in the PM10 Maintenance Plan Update. General Conformity Determination Under the General Conformity regulations, the FAA can utilize a number of criteria for demonstrating conformity with SIPs. For this determination, the FAA believes it is appropriate to utilize the criterion of demonstrating that emissions for the Proposed Action are specifically identified and accounted for in the SIP maintenance plans under 40 CFR 93.158(a)(1). The FAA has reviewed specific SIP maintenance plan documentation to affirm that the City and County of Denver's airport emissions inventory for DEN was included in the SIP maintenance plans by the State and regional air quality agencies. In a letter dated April 5, 2006, the Colorado Department of Public Health and Environment confirmed the emissions associated with the Proposed Action are reasonably accounted for in the Colorado SIPs. The FAA recognized that the SIP maintenance plans for the DMA include the future aviation activity levels predicted for the airport. The aircraft emissions included in the Technical Support Documents for the 2000 CO Maintenance Plan, the 2001 PM10 Maintenance Plan, the 2001 1-hour Ozone Maintenance Plan, and the 2004 8-hour Ozone Action Plan all rely on a Colorado Department of Aviation's aviation activity forecast that was prepared in 1999. From the forecasted activity levels, emissions were calculated and properly collaborated with the Colorado Department of Public Health and Environment for inclusion in the budgets listed in DMA's SIP maintenance plans. Figure 1 provides the historical aircraft activity and future levels used to predict SIP emissions for future milestone maintenance years. Note that the future aircraft activity levels for DEN are extrapolated based on historical levels plus the addition of Southwest's proposed activity. The resulting aircraft activity levels are extrapolated forward to illustrate how the influence of the Proposed Action compares to the future aircraft activity represented in the SIP maintenance plans. The addition of Southwest's increased aircraft activity levels directly affects the air carrier category at DEN. To better illustrate the influence Southwest will have on this category as it was represented in the SIP maintenance plans, Figure 2 isolates the air carrier category. The additional operations have been added to the actual trend line and compared to the future air carrier activity levels for future milestone years to demonstrate that the expected levels of operations are still below the air carrier aircraft activity levels represented in the SIP maintenance plans. The FAA demonstrates that the total of the actual aircraft operations plus the proposed aircraft operations and associated emissions for Southwest is below the SIP's forecasted values, and therefore emissions attributed to flights by Southwest are already accounted for in the SIP emissions inventories. The FAA believes, and State representatives confirmed, that the total net emissions associated with the Proposed Action (including the aircraft emissions) are reasonably accounted for in the SIP maintenance plans. As a result, the Proposed Action demonstrates a conformance to the existing and updated SIP maintenance plans for the DMA. BILLING CODE 4910-13-P [[Page 24907]] [GRAPHIC] [TIFF OMITTED] TN27AP06.042 BILLING CODE 4910-13-C [[Page 24908]] References 40 CFR part 93 subpart B--Determining Conformity of General Federal Actions to State or Federal Implementation Plans. EPA and FAA, General Conformity Guidance for Airports Questions and Answers, September 25, 2002. Carbon Monoxide References Colorado Department of Public Health & Environment, Air Pollution Control Division, Technical Support Document: Carbon Monoxide Redesignation Request and Maintenance Plan for the Denver Metropolitan Area, January 4, 2000. Colorado Department of Public Health & Environment, Air Pollution Control Division, Carbon Monoxide Redesignation Request and Maintenance Plan for the Denver Metropolitan Area, January 10, 2000. Colorado Department of Public Health & Environment, Air Pollution Control Division, Technical Support Document: Carbon Monoxide Maintenance Plan Revision for the Denver-Boulder Attainment Area, June 2003. Colorado Department of Public Health & Environment, Air Pollution Control Division, Carbon Monoxide Maintenance Plan for the Denver Metropolitan Area, June 19, 2003. Colorado Department of Public Health & Environment, Air Pollution Control Division, Technical Support Document: Carbon Monoxide Maintenance Plan Revision for the Denver-Boulder Attainment Area, September 2005. Colorado Department of Public Health & Environment, Air Pollution Control Division, Carbon Monoxide Maintenance Plan for the Denver Metropolitan Area, December 15, 2005. PM10 References Colorado Department of Public Health & Environment, Air Pollution Control Division, Technical Support Document: Colorado State Implementation Plan for PM10, Denver Metropolitan Nonattainment Area, Emissions Inventories and Dispersion Model Results for the Maintenance Plan, Adopted April 19, 2001. Colorado Department of Public Health & Environment, Air Pollution Control Division, PM10 Redesignation Request and Maintenance Plan for the Denver Metropolitan Area, Adopted April 19, 2001. Colorado Department of Public Health & Environment, Air Pollution Control Division, Revised Technical Support Document: Colorado State Implementation Plan for PM10, Denver Metropolitan Nonattainment Area, Emissions Inventories and Dispersion Model Results for the Maintenance Plan, September, 2005. Colorado Department of Public Health & Environment, Air Pollution Control Division, PM10 Maintenance Plan for the Denver Metropolitan Area, Approved by the Colorado Air Quality Control Commission December 15, 2005. Ozone References Colorado Department of Public Health & Environment, Air Pollution Control Division, Technical Support Document: Colorado State Implementation Plan for Ozone, Denver Metropolitan Nonattainment Area, Emissions Inventories for the Maintenance Plan and Redesignation Request, Adopted January 11, 2001. Colorado Department of Public Health & Environment, Air Pollution Control Division, Ozone Redesignation Request and Maintenance Plan for the Denver Metropolitan Area, Adopted January 11, 2001. Colorado Department of Public Health & Environment, Air Pollution Control Division, Technical Support Document: Colorado State Implementation Plan for Ozone, Denver Metropolitan Nonattainment Area, Appendix C--Emissions Inventories for the Ozone State Implementation Plan, February 26, 2004. Federal Register, USEPA approval of DMA's Ozone Action Plan, May 17, 2005. Issued in Washington, DC, on April 20, 2006. John M. Allen, Deputy Director, Flight Standards Service. [FR Doc. 06-3998 Filed 4-26-06; 8:45 am] BILLING CODE 4910-13-P

usgpo

2024-10-08T14:08:34.977391

FR

FR-2006-04-27/E6-6354

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24908] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6354] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration [Summary Notice No. PE-2006-11] Petitions for Exemption, Summary of Petitions Received AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of petitions for exemption received. ----------------------------------------------------------------------- SUMMARY: Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition. DATES: Comments on petitions received must identify the petition docket number involved and must be received on or before May 17, 2006. ADDRESSES: You may submit comments [identified by DOT DMS Docket Number FAA-2006-24500] by any of the following methods: Web site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site. Fax: 1-202-493-2251. Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001. Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or to Room PL- 401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Susan Lender (202) 267-8029 or John Linsenmeyer (202) 267-5174, Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. This notice is published pursuant to 14 CFR 11.85 and 11.91. Issued in Washington, DC, on April 21, 2006. Anthony F. Fazio, Director, Office of Rulemaking. Petitions for Exemption Docket No.: FAA-2006-24500. Petitioner: Raytheon Missile Systems/Advanced Programs. Section of 14 CFR Affected: 4 CFR 45.23(b), 91.9(b)(2), and 91.203(a) and (b). Description of Relief Sought: The exemption, if granted, would permit Raytheon to use 1'' lettering for the word ``Experimental'' on its unmanned aircraft because of the limited space available to display the designation. It would also permit Raytheon to keep the aircraft flight manual, the airworthiness certificate, and the U.S. registration certificate in the Ground Control Station, rather than in the aircraft. Since there is no pilot on the aircraft, the documents are best available to the pilot in the Ground Control Station. [FR Doc. E6-6354 Filed 4-26-06; 8:45 am] BILLING CODE 4910-13-P

usgpo

2024-10-08T14:08:35.004360

FR

FR-2006-04-27/E6-6306

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24908-24909] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6306] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Commercial Space Transportation Advisory Committee--Open Meeting AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of Commercial Space Transportation Advisory Committee Open Meeting. ----------------------------------------------------------------------- [[Page 24909]] SUMMARY: Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 2), notice is hereby given of a meeting of the Commercial Space Transportation Advisory Committee (COMSTAC). The meeting will take place on Wednesday, May 24, 2006, starting at 8 a.m. at the Federal Aviation Administration Headquarters Building, 800 Independence Avenue, SW., Washington, DC, in the Bessie Coleman Conference Center, located on the 2nd Floor. This will be the forty-third meeting of the COMSTAC. The proposed agenda for the meeting will feature an update on commercial space transportation legislative activities, briefings on national space and security policies, new RLV technology developments, and the Office of Space Commercialization in the Department of Commerce, and an activities report from FAA's Office of Commercial Space Transportation. The 2006 Commercial Space Transportation Forecasts on the geosynchronous and non-geosynchronous markets will also be released at this meeting. An agenda will be posted on the FAA Web site at http://ast.faa.gov/COMSTAC. Meetings of the COMSTAC Working Groups (Technology and Innovation, Reusable Launch Vehicle, Risk Management, and Launch Operations and Support) will be held on Tuesday, May 23, 2006. For specific information concerning the times and locations of the working group meetings, contact the Contact Person listed below. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should inform the Contact Person listed below in advance of the meeting. FOR FURTHER INFORMATION CONTACT: Brenda Parker (AST-100), Office of the Commercial Space Transportation, 800 Independence Avenue, SW., Room 331, Washington, DC 20591, telephone (202) 267-3674; E-mail [email protected]. Issued in Washington, DC, April 19, 2006. Patricia Grace Smith, Associate Administrator for Commercial Space Transportation. [FR Doc. E6-6306 Filed 4-26-06; 8:45 am] BILLING CODE 4910-13-P

usgpo

2024-10-08T14:08:35.029227

FR

FR-2006-04-27/06-3946

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24909] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3946] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Sixth Meeting: RTCA Special Committee 207/Airport Security Access Control Systems AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of RTCA Special Committee 207 Meeting, Airport Security Access Control Systems. ----------------------------------------------------------------------- SUMMARY: The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 207, Airport Security Access Control Systems. DATES: The meeting will be held May 11, 2006, from 10-5 p.m. ADDRESSES: The meeting will be held at RTC A, Inc., Conference Rooms, 1828 L Street, NW., Suite 805, Washington, DC 20036. FOR FURTHER INFORMATION CONTACT: (1) RTCA Secretariat, 1828 L Street, NW., Suite 805, Washington, DC 20036; telephone (202) 833-9339; fax (202) 833-9434; web site http://www.rtca.org. SUPPLEMENTARY INFORMATION: Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (P.L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 207 meeting. The agenda will include: May 11: Opening Plenary Session (Welcome, Introductions, and Administrative Remarks) Agenda Overview Workgroup Reports Workgroup 2: System Performance Requirements Workgroup 3: Subsystem Functional Performance Requirements Workgroup 4: System Verification and validation Workgroup 5: Biometrics Workgroup 6: Credentials Workgroup 7: Perimeter ICAO Update Closing Plenary Session (Other Business, Establish Agenda, Date and Place for Seventh and Eighth Meetings). Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may represent oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Members of the public may present a written statement to the committee at any time. Issued in Washington, DC, on April 18, 2006. Robert L. Bostiga, RTCA Advisory Committee. [FR Doc. 06-3946 Filed 4-26-06; 8:45am] BILLING CODE 4910-13-M

usgpo

2024-10-08T14:08:35.045877

FR

FR-2006-04-27/06-3988

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24909] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3988] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration Environmental Impact Statement: Butler County, PA AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Cancellation of the notice of intent. ----------------------------------------------------------------------- SUMMARY: This notice rescinds the previous Notice of Intent (issued October 3, 2001--Vol. 66, No. 192) to prepare an Environmental Impact Statement for a proposed highway project in Butler County. FOR FURTHER INFORMATION CONTACT: David W. Cough, P.E., Director of Operations, Federal Highway Administration, Pennsylvania Division Office, 228 Walnut Street, Room 508, Harrisburg, PA 17101-1720, Telephone (717) 221-3411-OR-Brian Allen, Assistant District Engineer for Design, Pennsylvania Department of Transportation, District 10-0, 2550 Oakland Avenue, P.O. Box 429, Indiana, PA, 15701, Telephone (724) 357-2077. SUPPLEMENTARY INFORMATION: Additional traffic analyses have indicated that all project alternatives can be down-scoped with little or no significant impact to the environment. An Environmental Assessment will be pursued, based on a revised project scoping. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.) James A. Cheatham, FHWA Division Administrator, Harrisburg, PA. [FR Doc. 06-3988 Filed 4-26-06; 8:45am] BILLING CODE 4910-22-M

usgpo

2024-10-08T14:08:35.078338

FR

FR-2006-04-27/06-3949

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24909-24910] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3949] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration Environmental impact statement: Gaston and Mecklenburg Counties, NC AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of intent. ----------------------------------------------------------------------- [[Page 24910]] SUMMARY: The FHWA is issuing this notice to advise the public that an environmental impact statement will be prepared for a proposed highway project in Gaston and Mecklenburg Counties, North Carolina. FOR FURTHER INFORMATION CONTACT: Clarence W. Coleman, P.E., Operations Engineer, Federal Highway Administration, 310 New Bern Avenue, Ste 410, Raleigh, North Carolina 27601-1418, Telephone: (919) 856-4346. SUPPLEMENTARY INFORMATION: The FHWA, in cooperation with the North Carolina Department of Transportation (NCDOT) and the North Carolina Turnpike Authority (NCTA), will prepare an environmental impact statement (EIS) addressing proposed improvements to east-west transporation mobility in the area around the City of Gastonia and other municipalities in southern Gaston County. As part of this proposed action, the NCDOT also proposes to improve mobility, access and connectivity between southern Gaston County and Mecklenburg County. The proposed project study area consists of the following general boundaries: I-85 to the north, the South Carolina State line to the south, the Charlotte-Douglas International Airport to the east, and the I-85 and US 29-74 junction to the west. The proposed action is consistent with the thoroughfare plans approved by the Gaston Urban Area Metropolitan Planning Organization (MPO) and the Mecklenburg-Union MPO. Alternatives to be studied in detail include: 1. No-Build. 2. Construction of a new location highway. Sixteen detailed study alternatives or corridors will be studied in the Draft EIS. The proposed project is being developed as a candidate toll road. Accordingly, in conjunction with development of the Draft Environmental Impact Statement and other on-going project development activities, NCTA is conducting a study to evaluate the feasibility of developing the proposed highway as a toll road and funding it, in whole or in part, through the issuance of ``revenue bonds.'' Letters describing the proposed action and soliciting comments have been sent to appropriate Federal, State and local agencies. Citizens' informational workshops, meetings with local officials, and a public hearing will be held. Information on the dates, times and locations of the citizens' informtional workshops and public hearings will be advertised in the local news media, and newsletters will be mailed to those on the project mailing list. The Draft EIS will be available for public and agency review and comment prior to the public hearing. To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.) Issued on: April 20, 2006. Clarence W. Coleman, Operations Engineer, Raleigh, North Carolina. [FR Doc. 06-3949 Filed 4-26-06; 8:45am] BILLING CODE 4910-22-M

usgpo

2024-10-08T14:08:35.092960

FR

FR-2006-04-27/06-3989

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24910-24911] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3989] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration Notice of Final Federal Ageny Actions on Proposed Highway in Alaska AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of limitation on claims for judicial review of actions by FHWA and other Federal Agencies. ----------------------------------------------------------------------- SUMMARY: This notice announces actions taken by the FHWA and other Federal agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, the East Lynn Canal Highway, Alaska Route Number 7, from Echol Cove to Katz Point in the Haines and Juneau Boroughs, State of Alaska. Those actions grant licenses, permits, and approvals for the project. DATES: By this notice, the FHWA is advising the public of final agency action subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before October 24, 2006. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies. FOR FURTHER INFORMATION CONTACT: Tim Haugh, Environmental and Right-of- Way Programs Manager, FHWA Alaska Division, P.O. Box 21648, Juneau, Alaska 99802-1648; office hours 7 a.m.-4:30 p.m. (AST), phone (907) 586-7418; e-mail [email protected]. You may also contact Reuben Yost, Special Projects Manager, Alaska Department of Transportation and Public Facilities DOT&PF), 6860 Glacier Highway, P.O. Box 112506, Juneau, Alaska 99811-2506; office hours 8 a.m.-5 p.m. (AST), phone (907) 465-1774, e-mail [email protected]. SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing approvals for the following highway project in the State of Alaska: FHWA Alaska Division Project Number STP-000S(131) titled the Juneau Access Improvements Project, involves construction of approximately 51 miles of two lane highway from the end of Glacier Highway at Echo cover in the City and Borough of Juneau to a point two miles north of the Katzehin River in the Haines Borough. A ferry terminal will be constructed at the north end of the highway, and new shuttle ferries will be constructed to run from Haines and Skagway. Three major rivers will be bridged as well as several streams. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Impact Statement (FEIS) for the project, approved on January 18, 2006, in the FHWA Record of Decision (ROD) issued on April 3, 2006, and in other documents in the FHWA administrative record. The FEIS, ROD, and other documents in the FHWA administrative record file are available by contacting the FHWA or the DOT&PF at the addresses provided above. The FHWA FEIS and ROD can be viewed and downloaded from the project Web site at http://dot.alaska.gov/juneauaccess or viewed at public libraries in the project area. This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws and Executive Orders under which such actions were taken, including but not limited to: 1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321-4351]; Federal-Aid Highway Act [23 U.S.C. 109]. 2. Air: Clean Air Act, [42 U.S.C. 7401-7671(q)]. 3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303]. 4. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544 and section 1536], Marine Mammal Protection Act [16 U.S.C. 1361], Fish and Wildlife Coordination Act [16 U.S.C. 661-667(d)], Migratory Bird Treaty Act [16 U.S.C. 703-712]; Magnuson-Stevens [[Page 24911]] Fisheries Conservation and Management Act 1976 as amended [16 U.S.C. 1801 et seq.]. 5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq.]. 6. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)-2000(d)(1)]. 7. Wetlands and Water Resources: Land and Water Conservation Fund (LWCF) [16 U.S.C. 4601-4604]; Wild and Scenic Rivers Act [16 U.S.C. 1271-1287]. 8. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 13186 Migratory Birds. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.) Authority: 23 U.S.C. 139(1)(1). Issued on: April 18, 2006. David C. Miller, Division Administrator, Juneau, Alaska. [FR Doc. 06-3989 Filed 4-26-06; 8:45am] BILLING CODE 4910-22-M

usgpo

2024-10-08T14:08:35.107566

FR

FR-2006-04-27/E6-6305

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24911-24912] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6305] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration Notice of Final Federal Agency Actions on Proposed Highway in Ohio AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of Limitation on Claims for Judicial Review of Actions by FHWA and Other Federal Agencies. ----------------------------------------------------------------------- SUMMARY: This notice announces actions taken by the FHWA and other Federal agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, U.S. Route 24, from east of the IR469 bypass in New Haven, Indiana, Allen County, Indiana to SR424 west of Defiance, Ohio. Those actions grant licenses, permits, and approvals for the project. DATES: By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before October 24, 2006. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies. FOR FURTHER INFORMATION CONTACT: Mr. Mark Vonder Embse, Senior Transportation Engineer, Federal Highway Administration, 200 North High Street, Columbus, Ohio 43215; telephone: (614) 280-6854; e-mail: [email protected]. FHWA Ohio Division Office's normal business hours are 8 a.m. to 4:30 p.m. (eastern time). You may also contact Mr. Tim Hill, Ohio Department of Transportation, 1980 West Broad Street, Columbus, Ohio 43223; telephone: (614) 644-0377. SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the following highway project in the State of Ohio: U.S. Route 24, from east of the IR469 bypass in New Haven, Indiana, Allen County, Indiana to SR424 west of Defiance, Ohio. The project will be a 40 mile long, four-lane divided expressway in Ohio and freeway in Indiana. The proposed highway will be on new alignment. The alignment is south of and parallel to the Maumee River and existing US24. West of the City of Defiance, the proposed highway overlaps with the existing US24 alignment prior to crossing the Maumee River. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Impact Statement (FEIS) for the project, approved on October 26, 2005, in the FHWA Record of Decision (ROD) issued on December 9, 2005, and in other documents in the FHWA administrative record. The FEIS, ROD, and other documents in the FHWA administrative record file are available by contacting the FHWA or the Ohio Department of Transportation at the addresses provided above. The FHWA FEIS and ROD can be viewed at the Paulding County Carnegie Library-Antwerp and Payne Branches, Defiance Public Library, Defiance County Engineer's Office, Allen County (IN) Engineer's Office. For additional locations to view the FEIS and/or ROD, please call the aforementioned contacts. This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to: 1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321-4351]; Federal-Aid Highway Act [23 U.S.C. 109]. 2. Air: Clean Air Act, 42 U.S.C. 7401-7671(q). 3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303]; Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 319; Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601- 4604. 4. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544 and Section 1536], Marine Mammal Protection Act [16 U.S.C. 1361], Fish and Wildlife Coordination Act [16 U.S.C. 661-667(d)], Migratory Bird Treaty Act [16 U.S.C. 703-712]. 5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq.]; Archeological Resources Protection Act of 1977 [16 U.S.C. 470(aa)-11]; Archeological and Historic Preservation Act [16 U.S.C. 469-469(c)]; Native American Grave Protection and Repatriation Act (NAGPRA) [25 U.S.C. 3001-3013]. 6. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)-2000(d)(1)]; American Indian Religious Freedom Act [42 U.S.C. 1996]; Farmland Protection Policy Act (FPPA) [7 U.S.C. 4201-4209]. 7. Wetlands and Water Resources: Clean Water Act, 33 U.S.C. 1251- 1377 (Section 404, Section 401, Section 319); Safe Drinking Water Act (SDWA), 42 U.S.C. 300(f)-300(j)(6); Rivers and Harbors Act of 1899, 33 U.S.C. 401-406; Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287; Emergency Wetlands Resources Act, 16 U.S.C. 3921, 3931; TEA-21 Wetlands Mitigation, 23 U.S.C. 103(b)(6)(m), 133(b)(11); Flood Disaster Protection Act, 42 U.S.C. 4001-4128. 8. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593 Protection and Enhancement of Cultural Resources; E.O. 13007 Indian Sacred Sites; E.O. 13287 Preserve America; E.O. 13175 Consultation and Coordination with Indian Tribal Governments; E.O. 11514 Protection and Enhancement of Environmental Quality; E.O. 13112 Invasive Species. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.) Authority: 23 U.S.C. 139(l)(1). [[Page 24912]] Issued on: April 19, 2006. Dennis Decker, Division Administrator, Columbus, Ohio. [FR Doc. E6-6305 Filed 4-26-06; 8:45 am] BILLING CODE 4910-22-P

usgpo

2024-10-08T14:08:35.120039

FR

FR-2006-04-27/E6-6352

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24912-24913] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6352] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-2006-24195] Notice of Request for Comments on Extension of Currently Approved Information Collections: OMB Control Numbers 2126-0032 and 2126-0033 (Financial and Operating Statistics for Motor Carriers of Property) AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice and request for comments. ----------------------------------------------------------------------- SUMMARY: In accordance with the Paperwork Reduction Act of 1995 FMCSA announces its intent to submit two currently-approved Information Collection Requests (ICRs) described to the Office of Management and Budget (OMB) for review and approval. The ICRs describes two information collection activities and their expected costs and burdens. The Federal Register notice allowing for a 60-day comment period on the ICRs was published on January 18, 2006 (71 FR 2985). The agency received five comments in support of the continuation of these ICRs. DATES: Please send your comments by May 30, 2006. OMB must receive your comments by this date in order to act quickly on the ICR. ADDRESSES: Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 Seventeenth Street, NW., Washington, DC 20503, Attention: DOT/FMCSA Desk Officer. FOR FURTHER INFORMATION CONTACT: Ms. Toni Proctor, phone: (202) 366- 2998; Fax: (202) 366-3518; email: [email protected]; Federal Motor Carrier Safety Administration, U.S. Department of Transportation, Office of Research and Analysis, 400 Seventh Street SW., Suite 8214, Washington, DC 20590. Office hours are from 8 a.m. to 4 p.m., Monday through Friday, except Federal Holidays. SUPPLEMENTARY INFORMATION: (1) Title: Annual Report of Class I and Class II Motor Carriers of Property (Including Household Goods and Dual Property Motor Carriers) (formerly OMB Control Number 2139-0004). This information collection (IC) was transferred from the former Bureau of Transportation Statistics (BTS) to FMCSA on September 29, 2004 (69 FR 51009). FMCSA IC: OMB Control No: 2126-0032. Form No.: Form M. Type of Review: Extension of a currently-approved information collection. Respondents: Class I and Class II Motor Carriers of Property. Number of Respondents: 3,000 (per year). Estimated Time Per Response: 9 hours. Expiration Date: April 30, 2006. Frequency: Annually. Total Annual Burden: 27,000 hours [3,000 respondents x 9 hours per response = 27,000]. (2) Title: Quarterly Financial Report of Class I Motor Carriers of Property and Household Goods (formerly OMB Control Number 2139-0002). This information collection was transferred from BTS to FMCSA on September 29, 2004 (69 FR 51009). FMCSA IC: OMB Control No: 2126-0033. Form No.: Form QFR. Type of Review: Extension of a currently approved information collection. Respondents: Class I Motor Carriers of Property. Number of Respondents: 1,000 (per quarter). Estimated Time Per Response: 1.8 hours (27 minutes per quarter). Expiration Date: April 30, 2006. Frequency: Quarterly. Total Annual Burden: 1,800 hours [1,000 respondents x 1.8 hours per response = 1,800]. Background The Annual Report of Class I and Class II Motor Carriers of Property and Household Goods (Form M) and Quarterly Financial Report of Class I Motor Carriers of Property (Including Household Goods and Dual Property Motor Carriers) (Form QFR) are mandated reporting requirements applicable for for-hire motor carriers. Motor carriers (including interstate and intrastate) \1\ subject to the Federal Motor Carrier Safety Regulations (FMCSRs) are classified on the basis of their gross carrier operating revenues. Under the financial and operating statistics program, FMCSA collects balance sheet and income statement data, along with information on safety needs, tonnage, mileage, employees, transportation equipment and other related data. FMCSA may also ask carriers to respond to surveys concerning their operations. The data and information collected will be made publicly available and used by FMCSA to determine a motor carrier's compliance with the F&OS program requirements set forth in subchapter B of 49 CFR part 1420. --------------------------------------------------------------------------- \1\ For purposes of the Financial and Operating Statistics (F&OS) program, carriers are classified into the following three groups; (1) Class I carriers are those having annual carrier operating revenues (including interstate and intrastate) of $10 million or more after applying the revenue deflator formula in Note A of part 1420; (2) Class II carriers are those having annual carrier operating revenues (including interstate and intrastate) of at least $3 million but less than $10 million after applying the revenue deflator formula in Note A of part 1420; and (3) Class III carriers are those having annual carrier operating revenues (including interstate and intrastate) of less than $3 million after applying the revenue deflator formula in Note A of part 1420. --------------------------------------------------------------------------- The regulations were formerly administered by the Interstate Commerce Commission and later transferred to the U.S. Department of Transportation on January 1, 1996, by section 103 of the Interstate Commerce Commission Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 803, December 29, 1995), now codified at 49 U.S.C. 14123. The Secretary of Transportation (Secretary) transferred the authority to administer the F&OS program to the Bureau of Transportation Statistics on September 30, 1998 (63FR 52192). Pursuant to this authority, the BTS, now part of the Research and Innovative Technology Administration (RITA), became the DOT modal administration responsible for implementing the F&OS program and requirements in 49 CFR part 1420. On September 29, 2004, the Secretary transferred the responsibility for the F&OS program from BTS to FMCSA (69 FR 51009). FMCSA plans to publish a final rule in the future to transfer and re-designate the F&OS program reporting requirements at 49 CFR part 1420 from BTS (now RITA) to FMCSA. We particularly request comments on: (1) Whether the collection of information is necessary for FMCSA to meet its goal of reducing truck crashes and its usefulness to this goal; (2) the accuracy of the estimate of the burden of the information collection; (3) ways to enhance the quality, utility and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on respondents, including using automated collection techniques or other forms of information technology. The agency will summarize and/or include your comments in the request for OMB's clearance of these information collections. [[Page 24913]] Issued on April 20, 2006. Warren E. Hoemann, Acting Administrator. [FR Doc. E6-6352 Filed 4-26-06; 8:45 am] BILLING CODE 4910-EX-P

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2024-10-08T14:08:35.142086

FR

FR-2006-04-27/E6-6348

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24913-24914] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6348] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Research and Innovative Technology Administration [Docket No.: RITA-2006-24566] Notice of Request for Approval To Collect New Information: Confidential Close Call Reporting System AGENCY: Bureau of Transportation Statistics (BTS), Research and Innovative Technology Administration (RITA), DOT. ACTION: Notice and request for comments. ----------------------------------------------------------------------- SUMMARY: In accordance with the requirements of section3506(c)(2)(A) of the Paperwork Reduction Act of 1995, this notice announces that the Bureau of Transportation Statistics (BTS) intends to request the Office of Management and Budget (OMB) to approve a new information collection effort in railroad yards. This data collection effort is in support of a five-year research study aiming at improving rail safety by analyzing information on close calls and other unsafe occurrences in the rail industry. The study is conducted by the Office of Human Factors in the Federal Railroad Administration and is designed to identify safety issues and propose corrective actions based on voluntary reports of close calls submitted to BTS. This collection is necessary because data on close calls are not normally reported to the railroad carriers or the Federal Railroad Administration. DATES: Comments must be received by June 26, 2006. ADDRESSES: You can mail or hand-deliver comments to the U.S. Department of Transportation (DOT), Dockets Management System (DMS). You may submit your comments by mail or in person to the Docket Clerk, Docket No. RITA-2006-24566, U.S. Department of Transportation, 400 Seventh Street, SW., Room PL-401, Washington, DC 20590-0001. Comments should identify the docket number; paper comments should be submitted in duplicate. The DMS is open for examination and copying, at the above address, from 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays. If you wish to receive confirmation of receipt of your written comments, please include a self-addressed, stamped postcard with the following statement: ``Comments on Docket RITA-2006-24566.'' The Docket Clerk will date stamp the postcard prior to returning it to you via the U.S. mail. Please note that due to delays in the delivery of U.S. mail to Federal offices in Washington, DC, we recommend that persons consider an alternative method (the Internet, fax, or professional delivery service) to submit comments to the docket and ensure their timely receipt at U.S. DOT. You may fax your comments to the DMS at (202) 493-2251. If you wish to file comments using the Internet, you may use the DOT DMS Web site at http://dms.dot.gov. Please follow the online instructions for submitting an electronic comment. You can also review comments on-line at the DMS Web site at http://dms.dot.gov. Please note that anyone is able to electronically search all comments received into our docket management system by the name of the individual submitting the comment (or signing the comment if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; pages 19477-78) or you may review the Privacy Act Statement at http://dms.dot.gov. FOR FURTHER INFORMATION CONTACT: Demetra V. Collia, RTS 31, Room 3430, Bureau of Transportation Statistics, Research and Innovative Technology Administration, 400 Seventh Street, SW., Washington, DC 20590; (202) 366-1610; Fax No. (202) 493-0568; e-mail: [email protected]. Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays. Data Confidentiality Provisions: The confidentiality of Close Calls data is protected under the BTS confidentiality statute (49 U.S.C. 111(k) and the Confidential Information Protection and Statistical Efficiency Act (CIPSEA) of 2002 (Pub. L. 107-347, Title V). In accordance with these confidentiality statutes, only statistical and non-identifying data will be made publicly available through reports. Further, BTS will not release to FRA or any other public or private entity any information that might reveal the identity of individuals or organizations mentioned in close call reports. SUPPLEMENTARY INFORMATION: I. The Data Collection The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35; as amended) and 5 CFR part 1320 require each Federal agency to obtain OMB approval to initiate an information collection activity. BTS is seeking OMB approval for the following BTS information collection activity: Title: Confidential Close Call Reporting System. OMB Control Number: 2139-NEW. Type of Review: Approval of data collection. Respondents: Employees of selected (pilot) railroad sites. Number of Respondents: 350 (per annum). Estimated Time per Response: 0.50 hours. Frequency: Intermittent for 5 years. (Reports are submitted when there is a qualifying event, i.e., a close call occurs within a pilot site. The frequency of such event is estimated to be approximately one per day.) Total Annual Burden: 175.00 hours. II. Background Collecting data on the nation's transportation system is an important component of BTS's responsibility to the transportation community and is authorized in BTS statutory authority (49 U.S.C. 111(c)(1) and (2) and 49 U.S.C. 111(c)(5)(j)). BTS and FRA share a common interest in promoting rail safety based on better data. To that end, FRA's Office of Research and Development is sponsoring the Confidential Close Call Reporting System (C3RS) Demonstration Project to investigate the effectiveness of such system in improving rail safety. A close call represents a situation in which an ongoing sequence of events was stopped from developing further, preventing the occurrence of potentially serious safety-related consequences. This might include the following: (1) Events that happen frequently, but have low safety consequences; (2) events that happen infrequently but have the potential for high consequences (e.g., a train in dark territory proceeds beyond its authority); (3) events that are below the FRA reporting threshold (e.g., an event that causes a minor injury); and (4) events that are reportable to FRA but have the potential for a far greater accident than the one reported (e.g., a slow speed collision with minor damage to the equipment and no injuries.) Employees involved in a close call will be asked to fill out a questionnaire which will be made available on the Web and at their work site and mail it to BTS. The close call questionnaire will request the respondent to provide information such as: (1) Name and contact information; (2) time and location of the incident; (3) a short description of the event; (4) contributing factors to the close call; and (5) any other information that might be useful [[Page 24914]] in determining a root cause of such event. BTS will collect close call reports submitted by railroad employees, develop an analytical database containing the reported data and other pertinent information, and protect the confidentiality of these data through its own statute (49 U.S.C. 111(i)) and the Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA). The database will be a valuable tool to railroad carriers and the FRA in their effort to identify safety issues and provide corrective measures before an accident occurs. Voluntary reporting of close calls to a confidential system can provide a tool to identify and correct weaknesses in railroad safety systems before an accident actually occurs. The C3RS demonstration project will foster a voluntary, cooperative, non- punitive environment to communicate safety concerns. Through the analysis of close calls the FRA and the railroad community will receive information about factors that may contribute to unsafe events and the error recovery mechanisms that prevented an adverse consequence from occurring. Such information can be used to develop new training programs, identify root causes of potentially adverse events, assess risk and allocate resources to address those risks more efficiently. The database will also provide other users such as rail safety researchers with valuable information regarding precursors to safety risks and contribute to research and development of intervention programs aimed at preventing accidents and fatalities. III. Request for Comments BTS requests comments on any aspects of these information collections, including: (1) The accuracy of the estimated burden; (2) ways to enhance the quality, usefulness, and clarity of the collected information; and (3) ways to minimize the collection burden without reducing the quality of the information collected, including additional use of automated collection techniques or other forms of information technology. Issued in Washington, DC on April 20, 2006. William Bannister, Acting Deputy Director, Bureau of Transportation Statistics, Research and Innovative Technology Administration. [FR Doc. E6-6348 Filed 4-26-06; 8:45 am] BILLING CODE 4910-HY-P

usgpo

2024-10-08T14:08:35.167826

FR

FR-2006-04-27/E6-6316

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Page 24914] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6316] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE TREASURY Submission for OMB Review; Comment Request April 20, 2006. The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220. DATES: Written comments should be received on or before May 30, 2006 to be assured of consideration. Financial Management Service OMB Number: 1510-0037. Type of Review: Extension. Title: Voucher for Payment of Awards. Form: FMS form 5135. Description: Awards certified to Treasury are paid annual as funds are received from foreign governments. Vouchers are mailed to award holders showing payments due. Award holders sign vouchers certifying that he/she is entitled to payment. Respondents: Individuals or households. Estimated Total Burden Hours: 700 hours. Clearance Officer: Jiovannah Diggs, (202) 874-7662, Financial Management Service, Room 144, 3700 East West Highway, Hyattsville, MD 20782. OMB Reviewer: Alexander T. Hunt, (202) 395-7316, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503. Michael A. Robinson, Treasury PRA Clearance Officer. [FR Doc. E6-6316 Filed 4-26-06; 8:45 am] BILLING CODE 4810-35-P

usgpo

2024-10-08T14:08:35.179848

FR

FR-2006-04-27/E6-6351

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Notices] [Pages 24914-24915] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6351] ----------------------------------------------------------------------- DEPARTMENT OF THE TREASURY Departmental Offices--Office of International Investment; Proposed Collection; Comment Request ACTION: Notice and request for comments. ----------------------------------------------------------------------- SUMMARY: The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the Office of International Investment within the Department of the Treasury is soliciting comments concerning the information collection provisions of the Regulations Pertaining to Mergers, Acquisitions and Takeovers by Foreign Persons, 31 CFR 800.402. DATES: Written comments should be received on or before June 26, 2006 to be assured of consideration. ADDRESSES: Direct all written comments to Gay Sills, Director, Office of International Investment, Department of the Treasury, 1500 Pennsylvania Avenue, NW., Washington, DC 20220--(202) 622-1860. FOR FURTHER INFORMATION CONTACT: Requests for additional information should be directed to Jack Dempsey, Economist, Office of International Investment, Department of the Treasury, 1500 Pennsylvania Avenue, NW., Washington, DC 20220--(202) 622-1860; or Francine McNulty Barber, Senior Counsel, Department of the Treasury, Room 2014, 1500 Pennsylvania Ave., NW., Washington, DC 20220--(202) 622-1947. SUPPLEMENTARY INFORMATION: Title: Regulations Pertaining to Mergers, Acquisitions and Takeovers by Foreign Persons. OMB Number: 1505-0121. Abstract: The information request in this proposed collection is contained in 31 CFR 800.402. The information collected under these regulations is used by the Committee on Foreign Investment in the United States (CFIUS), an inter-agency committee chaired by the Secretary of the Treasury and comprised of the Secretaries of State, Defense, Treasury, Commerce and Homeland Security, the Attorney General, the U.S. Trade Representative, the Director of the Office of Management and Budget, the Chairman of the Council of Economic Advisers, and the Assistants to the President for National Security, National Economic Policy, and Science and Technology. The President has delegated to CFIUS the President's authority under section 721 of the Defense Production Act of 1950 to determine the effects on the national security of acquisitions proposed or pending after the date of enactment (August 23, 1988) by or with foreign persons that could result in foreign control of persons engaged in [[Page 24915]] interstate commerce in the United States. Current Actions: Extension. Type of Review: Extension. Affected Public: Foreign businesses and foreign individuals. Estimated Number of Responses: 65. Estimated Time Per Respondent: This varies, depending on individual circumstances, with an average of 60 hours. Estimated Total Annual Burden Hours: 3900 hours. Requests For Comments: Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Francine McNulty Barber, Senior Counsel, Office of the Assistant General Counsel for International Affairs. [FR Doc. E6-6351 Filed 4-26-06; 8:45 am] BILLING CODE 4810-25-P

usgpo

2024-10-08T14:08:35.199939

FR

FR-2006-04-27/C6-3470

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Corrections] [Page 24916] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: C6-3470] Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / CORRECTIONS [[Page 24916]] DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AU22; 1018-AI48 Endangered and Threatened Wildlife and Plants; Final Rule To Remove the Arizona Distinct Population Segment of the Cactus Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum) From the Federal List of Endangered and Threatened Wildlife; Withrawal of the Proposed Rule to Designate Critical Habitat; Removal of Federally Designated Critical Habitat Correction FR Document 06-3470 was published in the Rules section of the Federal Register in the issue of April 14, 2006 (71 FR 19452). This document was inadvertently published as a single Rule document. However, the portion of the document withdrawing the proposed rule to designate new critical habitat for the Arizona DPS of the pigmy-owl (67 FR 7103, November 27, 2002) should have been a separate document, and should have appeared in the Proposed Rule section. [FR Doc. C6-3470 Filed 4-26-06; 8:45 am] BILLING CODE 1505-01-D

usgpo

2024-10-08T14:08:35.216932

FR

FR-2006-04-27/06-3747

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Rules and Regulations] [Pages 24918-24970] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3747] [[Page 24917]] ----------------------------------------------------------------------- Part II Department of Commerce ----------------------------------------------------------------------- Bureau of Industry and Security ----------------------------------------------------------------------- 15 CFR Parts 711, 712 et al. Chemical Weapons Convention Regulations; Final Rule Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations [[Page 24918]] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 710, 711, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, and 722 [Docket No. 990611158-5327-06] RIN 0694-AB06 Chemical Weapons Convention Regulations AGENCY: Bureau of Industry and Security, Commerce. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: On April 25, 1997, the United States ratified the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, also known as the Chemical Weapons Convention (CWC or Convention). The Bureau of Industry and Security (BIS) published an interim rule, on December 30, 1999, that established the Chemical Weapons Convention Regulations (CWCR) to implement the provisions of the CWC affecting U.S. industry and other U.S. persons. The CWCR include requirements to report certain activities, involving scheduled chemicals and unscheduled discrete organic chemicals, and to provide access for on-site verification by international inspectors of certain facilities and locations in the United States. This final rule updates the CWCR to remove outdated provisions and include additional requirements identified in the implementation of the CWC and by clarifying other CWC requirements. DATES: This rule is effective April 27, 2006. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. ADDRESSES: You may submit comments, identified by RIN 0694-AB06, by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. E-mail: [email protected]. Include ``RIN 0694- AB06'' in the subject line of the message. Fax: (202) 482-3355. Please alert the Regulatory Policy Division, by calling (202) 482-2440, if you are faxing comments. Mail or Hand Delivery/Courier: Willard Fisher, U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, ATTN: RIN 0694-AB06. FOR FURTHER INFORMATION CONTACT: For questions of a general or regulatory nature, contact the Regulatory Policy Division, telephone: (202) 482-2440. For program information on declarations, reports, advance notifications, chemical determinations, recordkeeping, inspections and facility agreements, contact the Treaty Compliance Division, Office of Nonproliferation and Treaty Compliance, telephone: (703) 605-4400; for legal questions, contact Rochelle Woodard, Office of the Chief Counsel for Industry and Security, telephone: (202) 482- 5301. SUPPLEMENTARY INFORMATION: Background I. Summary of CWCR Changes Contained in This Final Rule On April 25, 1997, the United States ratified the Convention on the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, also known as the Chemical Weapons Convention (CWC or Convention). The CWC, which entered into force on April 29, 1997, is an arms control treaty with significant nonproliferation aspects. As such, the CWC bans the development, production, stockpiling or use of chemical weapons and prohibits States Parties to the CWC from assisting or encouraging anyone to engage in a prohibited activity. The CWC provides for declaration and inspection of all States Parties' chemical weapons and chemical weapon production facilities, and oversees the destruction of such weapons and facilities. To fulfill its arms control and nonproliferation objectives, the CWC also establishes a comprehensive verification scheme and requires the declaration and inspection of facilities that produce, process or consume certain ``scheduled'' chemicals and unscheduled discrete organic chemicals, many of which have significant commercial applications. The CWC also requires States Parties to report exports and imports and to impose export and import restrictions on certain chemicals. These requirements apply to all entities under the jurisdiction and control of States Parties, including commercial entities and individuals. States Parties to the CWC, including the United States, have agreed to this verification scheme in order to provide transparency and to ensure that no State Party to the CWC is engaging in prohibited activities. The Chemical Weapons Convention Implementation Act of 1998 (the Act or CWCIA) (22 U.S.C. 6701 et seq.), enacted on October 21, 1998, authorizes the United States to require the U.S. chemical industry and other private entities to submit declarations, notifications and other reports and also to provide access for on-site inspections conducted by inspectors sent by the Organization for the Prohibition of Chemical Weapons. Executive Order (E.O.) 13128 delegates authority to the Department of Commerce to promulgate regulations, obtain and execute warrants, provide assistance to certain facilities, and carry out appropriate functions to implement the CWC, consistent with the Act. The Department of Commerce implements CWC import restrictions under the authority of the International Emergency Economic Powers Act, the National Emergencies Act, and E.O. 12938, as amended by E.O. 13128. The Departments of State and Commerce have implemented the CWC export restrictions under their respective export control authorities. E.O. 13128 designates the Department of State as the United States National Authority (USNA) for purposes of the CWC and the Act. On December 30, 1999, the Bureau of Industry and Security (BIS), U.S. Department of Commerce, published an interim rule that established the Chemical Weapons Convention Regulations (CWCR) (15 CFR Parts 710- 722). The CWCR implemented the provisions of the CWC, affecting U.S. industry and U.S. persons, in accordance with the provisions of the Act. This final rule revises the CWCR by updating them to remove outdated provisions (e.g., the initial declaration requirements in parts 713, 714, and 715) and include additional requirements identified as necessary for the implementation of the CWC provisions and by clarifying other CWC requirements. The changes made by this rule were addressed in a proposed rule and request for public comments that BIS published on December 7, 2004. Specifically, this final rule makes the following revisions to the CWCR: A. Revisions to Section 710.1 of the CWCR (Definitions of Terms Used in the CWCR) This rule revises Sec. 710.1 of the CWCR by amending the definition of ``domestic transfer'' to clarify that the term, as applied to the declaration requirements for Schedule 2 or Schedule 3 chemicals under the CWCR, means the movement of a Schedule 2 or Schedule 3 chemical, in quantities and concentrations greater than the specified thresholds under the convention, outside the geographical boundary of a facility in the United [[Page 24919]] States to another destination in the United States, for any purpose. This rule adds a definition for the term ``intermediate'' to Sec. 710.1 of the CWCR in order to clarify the use of that term in Sec. 712.5(d) and Supplement No. 2 to part 715 of the CWCR. Section 710.1 of the CWCR is amended to define ``intermediate'' as ``a chemical formed through chemical reaction that is subsequently reacted to form another chemical.'' The definition of ``intermediate'' also clarifies its use in Sec. Sec. 712.5(d), 713.2(a)(2)(ii) and 714.1(a)(2)(ii), whereby Schedule 1, Schedule 2 and Schedule 3 chemicals that are intermediates, but not transient intermediates, must be considered when determining if a chemical is subject to declaration. Lastly, Supplement No. 2 to part 715 of the CWCR, which provides examples of unscheduled discrete organic chemicals (UDOCs) and UDOC production, indicates that intermediate UDOCs used in a single or multi-step process to produce another declared UDOC are not subject to declaration requirements under the CWCR. In addition, this rule adds a definition of the term ``advance notification'' to Sec. 710.1 of the CWCR to clarify the use of that term in part 712 of the CWCR. Section 710.1 of the CWCR defines ``advance notification'' to mean ``a notice informing BIS of a company's intention to export to or import from a State Party a Schedule 1 chemical.'' Advance notifications must be submitted to BIS at least 45 days prior to the proposed export or import, except for exports or imports of 5 milligrams or less of saxitoxin for medical/ diagnostic purposes which may be submitted to BIS at least 3 days prior to export or import. The definition contained in this rule also indicates that this notification requirement is in addition to any export license requirement under the Export Administration Regulations (EAR) (15 CFR Parts 730-799) or the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), or import license requirement under the Alcohol, Tobacco, Firearms and Explosives Regulations (27 CFR part 447). The definition of the term ``production'' in Sec. 710.1 of the CWCR is revised by adding certain notes that incorporate decisions by the Organization for the Prohibition of Chemical Weapons' Conference of the States Parties (OPCW/CSP) regarding the production of Schedule 1, 2, and 3 chemicals. The first note clarifies that the production of Schedule 1 chemicals includes ``formation through chemical synthesis as well as processing to extract and isolate Schedule 1 chemicals.'' The second note clarifies that the ``production'' of a Schedule 2 or Schedule 3 chemical ``means all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared.'' This rule adds a definition of the term ``production by synthesis'' in Sec. 710.1 of the CWCR to clarify the use of the term in Sec. 715.1 of the CWCR (i.e., declaration of production by synthesis of UDOCs for purposes not prohibited by the CWC) and Supplement No. 2 to part 715 of the CWCR (i.e., examples of activities that are not considered to be production by synthesis under part 715 of the CWCR). Section 710.1 of the CWCR defines ``production by synthesis'' to mean ``production of a chemical from its reactants.'' This definition replaces the definition of the term ``synthesis'' in Sec. 710.1 of the CWCR. In addition, a new Supplement No. 2 is added to Part 710 of the CWCR to define the types of production covered under the CWCR. This rule also amends Sec. 710.1 of the CWCR to add a definition of the term ``protective purposes,'' as it relates to Schedule 1 chemicals, stating that protective purposes means any purpose directly related to protection against toxic chemicals and to protection against chemical weapons. Finally, this rule amends Sec. 710.1 of the CWCR by adding a definition of the term ``transient intermediate'' in order to clarify the scope of the declaration requirements that apply to the production of certain scheduled chemicals. Section 710.1 of the CWCR defines the term ``transient intermediate'' to mean ``any chemical that is produced in a chemical process, but that only exists for a very short period of time and cannot be isolated, even by modifying or dismantling the plant, altering the chemical production process operating conditions, or stopping the chemical production process altogether.'' B. Amendments to Section 710.2 of the CWCR (Scope of the CWCR) This rule amends Sec. 710.2(a) of the CWCR by removing the phrase ``The CWCR declaration, reporting, and inspection requirements apply * * *'' from that paragraph. Removal of this phrase clarifies which persons and facilities are generally subject to the provisions of the CWCR. C. Amendments to Section 710.6 of the CWCR (Relationship Between the CWCR and the Export Administration Regulations) This rule amends Sec. 710.6 of the CWCR to include a reference to Export Control Classification Number (ECCN) 1C395 on the Commerce Control List (CCL), which is in Supplement No. 1 to part 774 of the EAR. ECCN 1C395 controls the following items: (i) mixtures that contain more than 10 percent, but less than 30 percent, by weight of any single CWC Schedule 2 chemical identified in ECCN 1C350.b and (ii) certain medical, analytical, diagnostic and food testing kits that contain CWC Schedule 2 or Schedule 3 chemicals controlled by ECCN 1C350.b or .c, respectively, in an amount not exceeding 300 grams per chemical. D. Amendments to Supplement No. 1 to Part 710 of the CWCR (List of States Parties to the CWC) This rule amends Supplement No. 1 to part 710 of the CWCR (States Parties to the Convention on The Prohibition of The Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction) by updating the list of States Parties to include the following recent additions: Afghanistan, Andorra, Antigua and Barbuda, Azerbaijan, Belize, Bhutan, Cambodia, Cape Verde, Chad, Colombia, Democratic Republic of the Congo, Djibouti, Dominica, Eritrea, Gabon, Grenada, Guatemala, Haiti, Honduras, Jamaica, Kazakhstan, Kiribati, Kyrgyzstan, Liberia, Libya, Madagascar, Malaysia, Marshall Islands, Micronesia (Federated States of), Mozambique, Nauru, Niue, Palau, Rwanda, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Samoa, San Marino, Sao Tome and Principe, Serbia and Montenegro, Sierra Leone, Solomon Islands, Thailand, Timor Leste, Tonga, Tuvalu, Uganda, United Arab Emirates, Vanuatu, Yemen, and Zambia. As of March 25, 2006, 178 countries had become States Parties to the CWC. E. Amendments to Part 711 of the CWCR (General Information Regarding Declaration, Reporting and Advance Notification Requirements) This rule adds a new Sec. 711.3 that establishes BIS's authority to contact any company to determine whether it is in compliance with the CWCR. Information requested may relate to the production, processing, consumption, export, import, or other activities involving scheduled chemicals and UDOCs described in Parts 712 through 715 of the CWCR. Any person or facility [[Page 24920]] subject to the CWCR and receiving such a request for information will be required to provide a response to BIS within the time-frame specified in the request. However, this requirement does not, in itself, impose a requirement to create new records or maintain existing records. This rule amends Sec. 711.3 of the CWCR by moving it to Sec. 711.4 and specifying a time period within which BIS will respond to chemical determination requests. BIS will respond, in writing, to a chemical determination request within 10 working days of receipt of the request. This rule removes the declaration and reporting requirements in Sec. 711.4 of the CWCR concerning activities that occurred prior to December 30, 1999, since these requirements should already have been satisfied. A new Sec. 711.7 is added to provide information on where to submit declarations, advance notifications, and reports. This rule also adds a new Sec. 711.8 that contains instructions for applying for authorization to submit electronic declarations and reports through the Web-Data Entry System for Industry (WebDESI). This electronic submission procedure fulfills the requirements of the Government Paperwork Elimination Act (44 U.S.C. 3504). F. Amendments to Part 712 of the CWCR (Activities Involving Schedule 1 Chemicals) This rule adds a new Sec. 712.2(a) that prohibits the production of Schedule 1 chemicals for protective purposes, as defined in Sec. 710.1 of the CWCR. This change is consistent with the provisions in Part VI of the CWC Annex on Implementation and Verification (the ``Verification Annex'') that describe production activities not prohibited under the CWC. These provisions restrict production of Schedule 1 chemicals for protective purposes to a single small-scale facility approved by the State Party and one facility outside of a single small-scale facility, which also must be approved by the State Party. The only two facilities in the United States authorized to produce Schedule 1 chemicals for protective purposes are owned and operated by the U.S. Department of Defense--these facilities are not subject to the CWCR, pursuant to Sec. 710.2(a)(1)(i). Therefore, all facilities subject to the CWCR are prohibited from producing Schedule 1 chemicals for protective purposes. This rule also clarifies that initial declarations submitted in February 2000 remain valid until they are either amended or rescinded. If you plan to alter the technical layout of your declared facility, you must submit an amended declaration to BIS at least 200 calendar days prior to making any such change to your facility. This rule revises Sec. 712.3 of the CWCR by moving the annual declaration requirements for Schedule 1 facilities to new Sec. 712.5. This rule amends Sec. 712.4 of the CWCR to clarify the declaration requirements that apply to the establishment of new Schedule 1 chemical production facilities. If a Schedule 1 chemical production facility has never been declared in a previous calendar year or its initial declaration has been withdrawn in accordance with the requirements of amended Sec. 712.5(g) of this rule, you must submit an initial declaration (including a current detailed technical description of the facility) to BIS at least 200 calendar days prior to commencing production of Schedule 1 chemicals at the facility in quantities greater than 100 grams aggregate per year. Such facilities are considered to be ``new Schedule 1 chemical production facilities'' and are subject to an initial inspection within 200 calendar days of the submission of the initial declaration to BIS. This rule revises the remainder of part 712 of the CWCR, as follows: (1) Advance notification and annual report requirements for Schedule 1 chemical exports and imports are moved from Sec. 712.5 of the CWCR to Sec. 712.6; (2) provisions for Table 1 to Sec. 712.6 of the CWCR are moved to new Supplement No. 2 to part 712 of the CWCR; (3) procedures concerning declarations and reports returned without action by BIS are described in new Sec. 712.8 of the CWCR; and (4) the due date for Annual Declarations for Anticipated Activities is changed from August 3 to September 3, thereby giving Schedule 1 facilities an additional 30 days in which to complete and submit their declarations. This rule amends the CWCR provisions that require advance notification of exports and imports of Schedule 1 chemicals by establishing an exception to the requirement that BIS must be notified at least 45 calendar days prior to the export or import of a Schedule 1 chemical to or from another State Party. Advance notification of the export or import of 5 milligrams or less of Saxitoxin--B(7), which is listed in Supplement No. 1 to part 712 of the CWCR, for medical or diagnostic purposes only, must be submitted to BIS at least 3 calendar days (rather than 45 calendar days) prior to the date of export or import. This rule amends the CWCR provisions concerning requirements for amending Schedule 1 declarations and reports. Section 712.7 of the CWCR is amended by clarifying and specifying deadlines for: (1) The types of changes to information on Schedule 1 chemicals and activities in the Annual Declaration of Past Activities that would require submission of an amended declaration to BIS; (2) the types of changes to export or import information in the Annual Reports on Exports and Imports from undeclared facilities, trading companies and U.S. persons that would require submission of an amended report to BIS; and (3) the types of changes to Schedule 1 chemical facility information (e.g., change in company name, address, declaration point of contact, ownership) that would require submission of an amended declaration or report to BIS. In addition, this rule adds a new Sec. 712.7(d) to the CWCR that provides guidance concerning the submission of inspection-related amendments. Amended declarations, based on the final inspection report, must be submitted to BIS within 45 calendar days of the date of BIS's post- inspection letter. This rule adds a new Sec. 712.8 to the CWCR that provides guidance concerning certain Schedule 1 declarations and reports that are returned without action. In these cases, BIS would return without action (RWA) any Schedule 1 declarations or reports that are determined to be not required by the CWCR. The returned declaration or report would be accompanied by a cover letter explaining why the declaration or report is being returned without action. BIS would retain a copy of the RWA letter, but would not maintain copies of any declarations or reports that were returned without action. Finally, the provisions previously contained in Sec. 712.6 and Table 1 to Sec. 712.6 of the CWCR, which provided information on the deadlines for submitting Schedule 1 declarations, reports, advance notifications and amendments to BIS, are updated and moved to new Sec. 712.9 and new Supplement No. 2 to part 712 of the CWCR, respectively. G. Amendments to Part 713 of the CWCR (Activities Involving Schedule 2 Chemicals) This rule adds a prohibition against exports of Schedule 2 chemicals to States not Party to the CWC in Sec. 713.1(a). Prior to the publication of this rule, the CWCR prohibited imports of Schedule 2 chemicals from States not Party to the CWC, but did not prohibit exports of Schedule 2 chemicals to such countries. Section 742.18 of the EAR requires a license to export Schedule 2 [[Page 24921]] chemicals to States not Party to the CWC and BIS applies a general policy of denial to license applications for such exports. A license is also required to export Schedule 2 chemicals that are controlled under the ITAR. This rule revises Sec. 713.1(b), which exempts certain mixtures containing Schedule 2 chemicals from the export and import prohibitions contained in Sec. 713.1(a) of the CWCR, as amended by this rule. Prior to the publication of this rule, Section 713.1(b) of the CWCR exempted mixtures containing 10 percent or less, by weight, of any single Schedule 2 chemical. This rule revises Sec. 713.1(b) of the CWCR to exempt the following mixtures: (i) Mixtures containing 1 percent or less, by weight, of any single Schedule 2A or 2A* chemical; (ii) mixtures containing 10 percent or less, by weight, of any single Schedule 2B chemical; and (iii) products identified as consumer goods packaged for retail sale for personal use or packaged for individual use. However, note that the consumer goods exemption for mixtures that contain Schedule 2 chemicals identified under ECCN 1C350 on the CCL (Supplement No. 1 to part 774 of the EAR) applies only to products identified as consumer goods packaged for retail sale for personal use and not to products packaged for individual use (the latter are exempt only by the CWCR and not by the Australia Group controls under the EAR). In addition, this rule: (i) Removes the provisions concerning declarations on past production of Schedule 2 chemicals for chemical weapons purposes (previously found in Sec. 713.2 of the CWCR); (ii) removes the provisions concerning Schedule 2 initial declarations and initial reports on exports and imports (previously found in Sec. Sec. 713.3(a)(1)(i) and 713.4(c)(1) and (c)(2) of the CWCR); (iii) amends the provisions providing guidance concerning amendments to declarations and reports (previously found in Sec. 713.7 of the CWCR); (iv) moves the provisions concerning the frequency and timing of declarations and reports (previously found in Sec. 713.6 of the CWCR) to Sec. 713.7; and (v) provides a description of the procedures that BIS will follow concerning declarations and reports RWA'd in Sec. 713.6 of the CWCR. This rule moves the Schedule 2 chemical annual declaration requirements previously described in Sec. 713.3 of the CWCR to Sec. 713.2 and amends this section to clarify that the scope of Schedule 2 production activities includes any associated processing steps of the Schedule 2 chemical and intermediates. Only transient intermediates are exempted. This clarification will ensure that the CWCR requirements apply to Schedule 2 chemical production where Schedule 2 chemicals are below the applicable concentration threshold when reacted, but subsequently are concentrated above the threshold during in-line processing. The provisions previously included in Sec. 713.6 and Table 1 to Sec. 713.6 of the CWCR, which contained information on the deadlines for submitting declarations, reports, advance notifications, and amendments to BIS, are moved to Sec. 713.7 and new Supplement No. 2 to part 713 of the CWCR, respectively. In addition, the CWCR provisions on amended declarations and reports for Schedule 2 chemicals are moved from Sec. 713.7 of the CWCR to Sec. 713.5 and amended by clarifying and specifying deadlines for: (i) The types of changes to information on Schedule 2 chemicals and activities in the Annual Declaration of Past Activities or the combined declaration and report that would require submission of an amended declaration to BIS; (ii) the types of changes to export or import information in the Annual Reports on Exports and Imports from undeclared facilities, trading companies and U.S. persons that would require submission of an amended report to BIS; and (iii) the types of changes to Schedule 2 chemical facility information (e.g., change in company name, address, declaration point of contact, ownership) that would require submission of an amended declaration or report to BIS. This rule also moves Sec. 713.6(d) of the CWCR to Sec. 713.5(d) and revises it to provide guidance concerning the submission of inspection-related amendments. Amended declarations, based on the final inspection report, must be submitted to BIS within 45 calendar days of the date of BIS's post-inspection letter. This rule amends Sec. 713.6 of the CWCR to provide information concerning the return of certain Schedule 2 declarations and reports without action. BIS will RWA (Return Without Action) any Schedule 2 declarations or reports that are determined not to be required by the CWCR. The returned declaration or report will be accompanied by a cover letter explaining why the declaration or report is being returned without action. BIS will retain a copy of the RWA letter, but will not maintain copies of any declarations or reports that are returned without action. Finally, the provisions previously contained in Sec. 713.6 and Table 1 to Sec. 713.6 of the CWCR, which provided information on the deadlines for submitting Schedule 2 declarations, reports, and amendments to BIS, are updated and moved to Sec. 713.7 and Supplement No. 2 to part 713 of the CWCR, respectively. H. Amendments to Part 714 of the CWCR (Activities Involving Schedule 3 Chemicals) This rule amends Sec. 714.1 of the CWCR by removing the provisions that addressed the past production of Schedule 3 chemicals. This section now contains the annual declaration requirements for Schedule 3 chemicals that were previously described in Sec. 714.2 of the CWCR. This section clarifies the scope of Schedule 3 production activities, as defined by the CWCR, to include any associated processing steps of a Schedule 3 chemical and intermediates. Only transient intermediates are exempted. This ensures that the CWCR requirements apply to Schedule 3 chemical production where Schedule 3 chemicals are below the applicable concentration threshold when reacted, but subsequently are concentrated above the threshold during processing. Section 714.1 of the CWCR is also amended to clarify the procedures that must be followed when determining the range of Schedule 3 chemical production for your plant site during the previous calendar year. Specifically, this rule includes a statement in Sec. 714.1(c)(1) of the CWCR to indicate that you should not aggregate amounts of production from plants on your plant site that did not individually produce a Schedule 3 chemical in an amount exceeding the applicable declaration threshold (i.e., greater than 30 metric tons). In short, only the production amounts from those plants on your plant site that individually produced greater than 30 metric tons of a Schedule 3 chemical should be aggregated for the purpose of calculating the total amount of a Schedule 3 chemical produced at your plant site during the previous calendar year. This rule also amends Sec. 714.2 of the CWCR by removing outdated Schedule 3 initial declaration and reporting requirements and by including the annual reporting requirements for exports and imports of Schedule 3 chemicals that were previously described in Section 714.3 of the CWCR. Section 714.3 of the CWCR is amended to include the advance declaration requirements for additionally planned production of Schedule 3 chemicals that were previously described in Sec. 714.4 of the CWCR. In addition, this rule amends Section 714.4 of the CWCR to include the [[Page 24922]] requirements for amending Schedule 3 declarations and reports that were previously described in Sec. 714.6 of the CWCR. This section is also amended to clarify and specify the deadlines for: (i) The types of changes to information on Schedule 3 chemicals and activities in the Annual Declaration of Past Activities or the combined declaration and report that would require submission of an amended declaration to BIS; (ii) the types of changes to export or import information in the Annual Reports on Exports and Imports from undeclared facilities, trading companies and U.S. persons that would require submission of an amended report to BIS; and (iii) the types of changes to Schedule 3 chemical facility information (e.g., change in company name, address, declaration point of contact, ownership) that would require submission of an amended declaration or report to BIS. In addition, this rule amends the CWCR to provide guidance in Sec. 714.4(d) concerning the submission of inspection-related amendments. Amended declarations, based on the final inspection report, must be submitted to BIS within 45 calendar days of the date of BIS's post-inspection letter. This rule amends Sec. 714.5 of the CWCR to provide information concerning the return of certain Schedule 3 declarations and reports without action. BIS will RWA (Return Without Action) any Schedule 3 declarations or reports that are determined not to be required by the CWCR. The returned declaration or report will be accompanied by a cover letter explaining why the declaration or report is being returned without action. BIS will retain a copy of the RWA letter, but will not maintain copies of any declarations or reports that are returned without action. Finally, this rule amends Sec. 714.6 of the CWCR and adds a new Supplement No. 2 to part 714 of the CWCR to provide updated information on the deadlines for submitting Schedule 3 declarations, reports, and amendments to BIS. Information on the deadlines for submitting Schedule 3 declarations and reports was previously provided in Sec. 714.5 and Table 1 to Sec. 714.5 of the CWCR. I. Amendments to Part 715 of the CWCR (Activities Involving Unscheduled Discrete Organic Chemicals (UDOCs)) This rule amends Sec. 715.1(a)(1)(ii) (which describes the annual declaration requirements for the production of UDOCs containing the elements phosphorus, sulfur or fluorine, referred to as ``PSF chemicals'') to clarify how to calculate the production by synthesis of PSF chemicals at your plant site during the previous calendar year. Specifically, this rule indicates that, when determining the quantity of each PSF chemical produced by a PSF plant on your plant site, you should only aggregate the PSF chemical production quantities from plants that individually produced a PSF chemical in an amount exceeding 30 metric tons. However, note that Sec. 715.1(a)(1)(i) indicates that, when determining UDOC production by synthesis on your plant site, you should aggregate all quantities of UDOCs and PSF chemicals produced, regardless of the amount of PSF chemicals produced (i.e., aggregate any PSF chemicals produced). This rule also revises Sec. 715.1(b)(1) of the CWCR by removing the initial declaration requirement and replacing it with the annual declaration requirement and adding a new subsection that provides for a new form called the ``No Changes Authorization'' form. This form may be submitted to BIS if there are no updates or changes to any information (other than the certifying official and dates signed and submitted) contained in the annual declaration on past activities previously submitted by your plant site. Section Sec. 715.1(b)(2) of the CWCR also indicates that, when you submit a ``No Changes Authorization'' form to BIS, your plant site's UDOC activities will continue to be declared to the OPCW and your plant site will remain subject to inspection (if applicable) based upon the data reported in your previous (i.e., most recent) annual declaration on past activities. This rule amends Sec. 715.2 of the CWCR to include requirements for amending UDOC declarations--these requirements were previously described in Sec. 715.3 of the CWCR. This section is also amended by clarifying or specifying the deadlines for: (i) The types of changes to information on UDOCs and activities in the Annual Declaration of Past Activities that would require submission of an amended declaration to BIS and (ii) the types of changes to UDOC plant information (e.g., change in company name, address, declaration point of contact, ownership) that would require submission of an amended declaration to BIS. In addition, this rule amends the CWCR to provide guidance in Sec. 715.2(c) concerning the submission of inspection-related amendments. Amended declarations, based on the final inspection report, must be submitted to BIS within 45 calendar days of the receipt of BIS's post-inspection letter. This rule amends Sec. 715.3 of the CWCR to provide information concerning the return of certain UDOC declarations without action. BIS will RWA any UDOC declarations that are determined not to be required by the CWCR. The returned declaration will be accompanied by a cover letter explaining why the declaration is being returned without action. BIS will retain a copy of the RWA letter, but will not maintain copies of any declarations that are returned without action. Finally, this rule amends part 715 of the CWCR by adding a new Sec. 715.4 and a new Supplement No. 3 to part 715 to provide updated information on the deadlines for submitting UDOC declarations and amendments to BIS. Information on the deadlines for submitting UDOC declarations was previously provided in Sec. 715.2 and Table 1 to Sec. 715.2 of the CWCR. J. Amendments to Part 716 of the CWCR (Initial and Routine Inspections of Declared Facilities) As part of their obligation under the Convention, each State Party to the CWC is subject to inspection of its chemical facilities engaged in certain activities involving scheduled chemicals. Part 716 of the CWCR provides general information about the conduct of initial and routine inspections of declared facilities subject to inspection under CWC Verification Annex Part VI (E), Part VII (B), Part VIII(B), and Part IX(B). This rule amends Sec. 716.2(a)(2)(i) of the CWCR to clarify that a facility agreement will be concluded by the U.S. National Authority (in coordination with BIS) with the OPCW before a new Schedule 1 facility, declared pursuant to Sec. 712.4 of the CWCR, can produce above threshold. This rule amends Sec. 716.4(b)(1) of the CWCR to clarify the scope of inspections by specifying that inspections under part 716 of the CWCR may include visual inspection of parts or areas of the plant site, in addition to the facilities or plants producing scheduled chemicals, in order to address any ambiguity that might arise during the inspection. In addition, photographs may be taken and formal interviews of facility personnel may be conducted. The Host Team Leader is responsible, as described in Section 716.4(b)(2) of the CWCR, for determining whether the Inspection Team's request to inspect any area, building, item or record is reasonable--such determinations are made on the basis of treaty requirements. Verification activities under the CWCR are carried out at declared plant sites--access to other parts of a plant site will be provided in a manner sufficient to [[Page 24923]] clarify for the Inspection Team any ambiguities that arise during an inspection and in accordance with the facility agreement. Section 716.4(b)(3) of the CWCR is amended to indicate that: (i) Technology subject to the ITAR shall not be divulged to the Inspection Team without U.S. Government authorization and (ii) each facility that is inspected is responsible for identifying ITAR-controlled technology to the BIS Host Team, if known. The extent to which ITAR controls the transfer of technology to foreign nationals is not affected by the CWCR--all inspection-related activities conducted under the CWCR must comply with any applicable ITAR requirements. This rule also clarifies the pre-inspection briefing requirements described in Sec. 716.4(c) of the CWCR and the requirements in Sec. 716.4(e) of the CWCR concerning the availability of records. The U.S. facility must provide the Inspection Team and the U.S. Government Host Team with appropriate accommodations in which to review relevant documents and must ensure that all relevant information will be available to the teams. In addition, this rule provides that, whenever the current owner of a declared facility does not have access to records for activities that took place under a previous owner of the facility, because such records were not transferred to the current owner of the facility by the previous owner (e.g., as part of the contract involving the sale of the facility), the previous owner must make such records available to the Host Team (for provision to the Inspection Team). However, the current owner of a facility, upon receiving notification of an inspection, is responsible for informing BIS if the previous owner did not transfer records for activities that took place under the previous ownership--this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities. Section 716.7 of the CWCR, which described requirements concerning the provisions of samples by declared facilities, is revised to restrict the analysis of such samples of the verification of the absence of undeclared scheduled chemicals, unless otherwise agreed after consultation with the facility representative. In addition, this rule adds a new Sec. 716.10 to clarify that, upon receipt of the final inspection report from the OPCW, BIS will send a copy of the final inspection report to the facility for its review. Facilities may submit comments on the final inspection report to BIS, and BIS will consider those comments, to the extent possible, when commenting on the final report. BIS will also send facilities a post-inspection letter with instructions based on decisions made during the inspection. Finally, this rule removes and reserves Supplement Nos. 2 and 3 of Part 716 of the CWCR, which included the model facility agreement for Schedule 1 chemicals and Schedule 2 chemicals, respectively. K. Amendments to Part 717 of the CWCR (CWC Clarification Procedures: Consultations and Challenge Inspections) Article IX of the CWC contains procedures for States Parties to clarify issues concerning compliance with the CWC. A State Party may request the OPCW to conduct an on-site challenge inspection of any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party. A challenge inspection may be conducted solely for the purpose of clarifying and resolving any questions concerning possible non-compliance with the CWC. This rule amends Sec. 717.1(b) of the CWCR to clarify that BIS will attempt to contact a person or facility that is subject to the Article IX clarification procedures as early as practicable, prior to issuing an official written request for clarification, and that such person or facility must provide the information required by BIS, pursuant to an Article IX clarification request, within five working days of the receipt of BIS's written request for clarification. In addition, this rule amends Sec. 717.2 (Challenge Inspections) by adding a new provision in Sec. 717.2(b)(2)(ii) explaining that, if consent is not granted within four hours of a facility's receipt of BIS's inspection notification, BIS will assist the Department of Justice in seeking a criminal warrant. Another new provision, i.e., Sec. 717.2(d)(5), is added to describe the requirements concerning pre-inspection briefings for challenge inspections. Section 717.2(d)(5) requires that, prior to the commencement of the challenge inspection, facility representatives must provide the Inspection Team and Host Team with a pre-inspection briefing on the facility that will include the following: (i) The types of activities being conducted at the facility (e.g., business and manufacturing operations); (ii) safety procedures that must be followed during the inspection; and (iii) administrative and logistical arrangements necessary to facilitate the inspection. Section 717.3 of the CWCR, which describes requirements concerning the provision of samples by declared facilities, is revised to restrict analysis of samples to verifying the presence or absence of scheduled chemicals or appropriate degradation products, unless agreed otherwise. Finally, this rule adds a new Sec. 717.5 to clarify that, upon receipt of the final inspection report from the OPCW, BIS will forward a copy to the facility, for comment, and will give consideration to the facility's comments prior to responding to the OPCW via the U.S. National Authority. In addition, Section 717.5 provides that, upon receipt of the final inspection report, BIS will send the facility a post-inspection letter detailing the issues that require follow-up action. L. Amendments to Part 719 of the CWCR (Enforcement) This rule amends part 719 of the CWCR to clarify that the scope of violations under the Chemical Weapons Convention Implementation Act (the Act) includes willfully failing or refusing to permit access to or copying of ``any record'' required to be established or maintained by the Act or the CWCR--not just those records exempt from disclosure under the Act or the CWCR, as previously stated in section 719.2(a)(2)(iii) of the CWCR. In addition, this rule amends the civil and criminal penalty provisions in sections 719.2(b)(2) and 719.2(c), respectively, to make the same clarification, with respect to the penalties that may be assessed for violations of the recordkeeping requirements in the Act or the CWCR. M. Amendments to Part 721 of the CWCR (Inspection of Records and Recordkeeping) This rule amends part 721 of the CWCR to clarify the circumstances under which the previous owner of a declared facility must retain supporting materials and documentation in accordance with the requirements of section 721.2. Specifically, section 721.2(a) is amended to clarify that, if a declared facility is sold, the previous owner of the facility must retain all supporting materials and documentation that were not transferred to the current owner of the facility (e.g., as part of the contract involving the sale of the facility); otherwise, the current owner of the facility is responsible for retaining such supporting materials and documentation. Whenever the previous owner of a declared facility retains such supporting materials and documentation, the owner must inform [[Page 24924]] BIS of any subsequent change in address or other contact information, so that BIS will be able to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to inspection activities involving the facility. II. Summary of Public Comments on the December 7, 2004, Proposed CWCR Rule On December 7, 2004, BIS published a rule in the Federal Register (69 FR 70754), with a request for comments, that proposed amendments to the CWCR to update the CWCR (by adding new requirements identified since the implementation of the CWC) and clarify certain other CWC requirements. BIS received comments from five respondents. Following is a summary of those comments, along with BIS's responses. The comments are organized by regulatory section, with similar comments grouped under the same section heading. A. Section 710.1 ``Definitions of Terms Used in the Chemical Weapons Convention Regulations (CWCR)'' Comments: One respondent questioned the definition of ``production by synthesis'' set forth in the regulation. The respondent stated that, ``Production by synthesis means production of a chemical that is isolated for use or sale.'' The respondent further stated that, ``'synthesis'' chemically means production of a chemical from its reactants. (See Wikipedia, ``Chemical Synthesis,'' http://en.wikipedia.org/wiki/Chemical_synthesis). It is distinguished by production of a saleable product by another means, such as processing or biological mediation.'' The respondent suggested that, perhaps, BIS omitted a definition or inappropriately transposed the order of the definitions of ``production'' and ``production by synthesis.'' The respondent stated that the definition of synthesis, in any case, has a ``very specific connotation under the CWC; e.g., UDOCs have to be `produced by synthesis' (Verification Annex, Part IX, A.1.(b))'' and that this ``connotation'' is not reflected in the revised regulation. Response: The definition of ``production by synthesis'' has been revised in this final rule to mean ``production of a chemical from its reactants.'' This definition is consistent with language used in the interim CWCR, which has been applied since the CWC entered into force in the United States and has been deemed consistent with CWC requirements through application and practice. Note that Section 715.1(a)(2) of the CWCR establishes criteria for UDOCs produced by synthesis that have been isolated for use or sale as a specific end product. B. Section 711.3 ``Compliance Review'' Comments: Two respondents noted that they believe BIS already had the authority to conduct compliance reviews under the CWCR. They acknowledged the need for the compliance review element, but suggested that BIS provide companies 30 days to respond to requests for information under new Section 711.3 of the CWCR. Response: BIS's objective has been, and will continue to be, to minimize the burden of companies to comply with the CWCR, while at the same time ensuring that individual companies and the United States comply with the terms of the CWC and the CWC Implementation Act. In response to comments received, BIS has revised the regulation to state that, if BIS makes a request pursuant to new Section 711.3 of the CWCR, BIS will provide companies 30 days to respond to such request. Comments: One respondent stated that those companies, which have some sites that are subject to declaration requirements under the CWCR and other sites that are not, should not be required to keep records that substantiate activities at an undeclared site for purposes of compliance. Response: Section 711.3 of the CWCR does not require companies to maintain records other than those they would normally maintain, pursuant to regular business practices or pursuant to applicable CWCR requirements. C. Section 714.4(a) ``Changes to Information That Directly Affects a Declared [Schedule 3] Plant Site's Annual Declaration of Past Activities or Combined Annual Declaration or Report Which Was Previously Submitted to BIS'' Comments: One respondent requested that BIS clarify the circumstances under which the proposed requirement in Section 714.4(a) would apply to changes in the ``purpose'' of Schedule 3 chemical production. Section 714.4(a) of the proposed rule stated that an amended declaration or report must be submitted to BIS within 15 days of a change in the ``types'' of Schedule 3 chemicals produced, the ``production range'' for these chemicals (as specified in the CWCR), the ``purpose'' of such production, and the addition of ``new plants'' for Schedule 3 chemical production. The respondent stated that information on the ``purpose'' of production appeared to be ancillary to and only needed under the remote circumstance that a plant site becomes aware of: (1) ``additional plants'' on the plant site producing a Schedule 3 chemical or (2) the production of an ``additional chemical'' at a plant already reporting under the plant site. The respondent requested that BIS provide clarification, by way of examples, of the circumstances under which changes to the ``purpose'' of Schedule 3 production would require submission of an amended declaration to BIS. Response: Section 714.4(a) of the proposed rule required that an amendment be submitted to BIS within 15 days of any change in: (1) The types of Schedule 3 chemicals produced, (2) the production range of Schedule 3 chemicals (as specified in the CWCR), (3) the purpose of Schedule 3 chemical production, and (4) the addition of new plant(s) for producing Schedule 3 chemicals. To eliminate any uncertainty concerning whether or not a change in a single type of information identified in Section 714.4(a) (e.g., the ``purpose'' of Schedule 3 chemical production) would require submission of an amendment, BIS clarified the language in Section 714.4(a) of the proposed rule by revising the phrase, ``You must submit an amended declaration or report to BIS within 15 days of any change in the following information * * *,'' in the introductory text of paragraph (a), to read, ``You must submit an amended declaration or report to BIS within 15 days of determining that there has been a change in any of the following information that you have previously declared or reported * * *''. BIS also clarified that section by replacing the word ``and,'' at the end of paragraph (a)(3), with the word ``or.'' These changes to Section 714.4(a) clearly indicate that a change in any one of the four types of information listed therein would require the submission of an amendment to BIS within 15 days from the date that a company determines such a change has occurred. For example, if a plant site declares consumption (``In-line consumption as produced (captive use)'') of a Schedule 3 chemical as the only ``purpose'' of production in its declaration on past activities, but later learns that the chemical was also sold to another company in the United States, the plant site must submit an amendment to its declaration, declaring the additional end-use (i.e., transfer to another company or industry), within 15 days of having determined that the chemical was transferred, as well as consumed. Note: In contrast to the amendment requirements in Section 714.4(a) of the CWCR, Section 714.3(a)(2) states that a ``Declaration on Additionally Planned Activities'' is not required to change [[Page 24925]] anticipated end-use(s) of a chemical (i.e., purposes of production), unless there are other anticipated changes that must be declared, as specified in Section 714.3(a)(1)(i) through (a)(1)(iv) of the CWCR (e.g., the addition of a previously undeclared plant or chemical). D. Sections 713.5(b)(5) and 714.4(b) ``Changes to Export or Import Information Submitted in Annual Reports on Exports and Imports From Undeclared Plant Sites, Trading Companies and U.S. Persons'' Comments: Two respondents commented on the proposed end-use information requirements in Sections 713.5(b)(5) and 714.4(b)(5) of the CWCR, as they apply to changes to Schedule 2 and Schedule 3 annual reports previously submitted to BIS. One respondent noted that the CWCR do not require that information on end-use be included in an Annual Report of Exports or Imports. Both respondents asked BIS to indicate whether the end-use information requirements in Sections 713.5(b)(5) and 714.4(b)(5) of the CWCR were added to these sections in error or, if they were added intentionally, to clarify the purpose of the requirements. Response: BIS has determined that the requirement to submit end-use information was inadvertently included in sections 714.4 and 713.5 of the CWCR and has removed the requirement from both of these sections. E. Section 716.3(a) ``Consent to Inspections; Warrants for Inspections'' Comments: One respondent stated that the regulations should provide companies with the option of giving ``advance consent'' to routine and challenge inspections, as set forth in sections 716 and 717 of the CWCR, respectively. The respondent stated that such advance consent would become effective upon issuance by the U.S. National Authority (USNA) of a written notification of inspection, as specified in Section 716.5(a)(2) of the CWCR. The respondent suggested that this option should allow the owner to choose whether to have the advance consent expire at the end of a specified period of time or to have no expiration date. To implement this option, the respondent suggested that BIS could include an ``advance consent'' provision in the annual declaration form that would allow the individual completing the form to check the appropriate boxes to indicate whether or not ``advance consent'' is given and, if so, whether that consent will expire at a specified time or have no expiration date. Alternatively, the respondent suggests that ``advance consent'' could be indicated by submission of a letter from the owner to BIS that would provide ``advance consent.'' The respondent stated that this mode of consent would not diminish any rights under the rule to withdraw consent at any time. Response: Section 305(a) of the Chemical Weapons Convention Implementation Act (CWCIA) requires the United States Government to ``seek the consent of the owner or the owner, operator, occupant, or agent in charge of the premises to be inspected prior to any inspection * * *'' (See 22 U.S.C. 6701, 6725, Pub. L. 105-277, Section 305(a)). BIS has made a conservative interpretation of this requirement and therefore seeks actual consent from the authorized owner, operator or agent in charge, after notification, prior to every inspection. We have adopted this interpretation to ensure that the rights bestowed on the public by the CWCIA are fully addressed. Accordingly, BIS will not adopt a method for the submission of advance consent to inspections. F. Section 716.4(b)(1) ``Description of Inspections'' Comments: One respondent stated that the use of the word ``may,'' in the context of the areas that can be included in a visual inspection, creates uncertainty with regard to those areas of a facility that are subject to inspection and those that are not. The respondent stated that visual inspection of areas outside the declared plant site should be required only if there are no other means of clarifying an ambiguity. The respondent asserted that BIS should provide clarification in Section 716 of the CWCR, or at least in the preamble to the final rule, concerning which areas of the declared plant and plant site will be subject to visual inspection and which areas may be subject to visual inspection. The respondent also suggested that BIS should provide a more detailed explanation in Section 716 about managed access and other protections that may apply to inspections. Response: BIS cannot provide a list of areas that will be or may be subject to visual inspection because each inspection is conducted differently within the limits of the CWC and the Act. As the representative of the United States (Inspected State Party), the Host Team Leader is responsible, as described in section 716.4(b)(2), for determining whether the Inspection Team's request to inspect any area, building, item or record is reasonable. Such determinations are made by the Host Team Leader on the basis of treaty requirements. Verification activities are carried out at declared ``plant sites.'' The CWC states that the focus of inspections shall be the declared plant (see CWC Part VII paragraph 25, Part VIII paragraph 20, and Part IX paragraph 17 for Schedule 2, Schedule 3 and UDOC inspections, respectively). These activities are further described in the CWCR. Access to other parts of a plant site are provided in a manner sufficient to clarify, to the satisfaction of the Inspection Team, any ambiguities that arise during an inspection. Managed access is a means through which access to other parts of a plant site is controlled, and it cannot be narrowly defined. G. Section 716.4(b)(2) ``Scope of Consent'' Comments: One respondent stated that there is no mention of the facility's role in determining whether or not an Inspection Team's request for access is reasonable. The respondent stated that input from the inspected facility is crucial to any determination made by the Host Team with regard to access and other inspection activities. The respondent, therefore, suggested that Section 716.4(b)(2) should be revised to read as follows: ``The Host Team Leader will make the determination of whether the Inspection Team's request to inspect any area, building, item or record is reasonable after consultation with the owner, operator, occupant or agent in charge of a facility.'' Response: The Host Team Leader, as the representative of the United States during an inspection, has the sole responsibility for determining whether a request made by the Inspection Team is reasonable and necessary. The inspection being conducted at the facility is a U.S. Government-led inspection and therefore any interaction with the Inspection Team or decisions made regarding the conduct of the inspection are wholly within the province and authority of the U.S. Government. As a courtesy, BIS has made it a practice to consult with the facility prior to making these decisions. However, there is no obligation on the part of the U.S. Government to follow the instruction of, or await comment from, the facility when considering an Inspection Team request. Therefore, BIS will not revise section 716.4 to reflect the respondent's requested language. H. Section 716.4(b)(3) ``ITAR Controlled Technology'' Comments: One respondent stated that, in order to maximize the protection of technology controlled for export under the International Traffic in Arms [[Page 24926]] Regulations (ITAR) (22 CFR 120-130), the first sentence of this section should be revised to read as follows: ``ITAR-controlled technology cannot be divulged to the Inspection Team without U.S. Government (USG) authorization regardless of the nationalities of the Inspection Team members.'' Response: A key role for BIS, during CWC inspections of facilities, is to ensure that these inspections are conducted in a manner that does not adversely impact facility compliance with the requirements of the International Traffic in Arms Regulations (ITAR), which are administered by the U.S. Department of State. The terms under which members of the Inspection Team may have access to ITAR-controlled technology and information are subject to the provisions of those regulations and the instructions given to the Department of Commerce by the Department of State. The language proposed by the respondent would materially affect the implementation of those ITAR provisions and, therefore, will not be incorporated into the CWCR. Comments: Another respondent stated that the procedures through which the U.S. Government authorizes the release of ITAR technology during CWC inspections are unclear. The respondent requested that BIS clarify the procedures (if any) for authorizing the release of such technology. Response: The CWCR do not alter the ITAR provisions or procedures (22 CFR 120-130) as they apply to the transfer of technology to foreign nationals. Procedurally, if there is no approval from the U.S. Department of State or its duly designated U.S. Government representative for disclosure of ITAR technology during an inspection, such technology cannot be disclosed. I. Section 716.4(e) ``Records Review'' Comments: Two respondents commented on the requirement in Section 716.4(e) of the CWCR that, whenever the current owner of a declared facility does not have access to records for activities that took place under a previous owner of the facility, the previous owner must make such records available to the Host Team, for provision to the Inspection Team. One of the respondents said that, if contractually, records were transferred to the new owners of a facility subject to the CWCR, the previous owners should not be obligated to maintain duplicates of those records. Both respondents stated that this section of the CWCR appeared to impose an indefinite recordkeeping obligation upon former owners of declared facilities who were no longer subject to the CWCR and suggested that BIS should amend this section of the CWCR to clarify that, under any circumstances where the previous owner is obligated to maintain records, the five-year retention period described in Section 721.2(b) of the CWCR would apply. Response: Section 716.4(e) of the CWCR does not obligate the previous owner of a declared facility to maintain duplicates of records that were contractually transferred to the new owner of the facility. The company that legally owns the records after the sale is responsible for retaining the records and making them available for inspection. Accordingly, there is no duplication of recordkeeping. Section 721.2(b) establishes a five year retention period for all supporting materials and documentation related to compliance with the CWCR, so there are no open-ended record keeping obligations under the CWCR. However, in order to clarify the recordkeeping requirements that apply to previous owners of declared facilities, BIS is amending Section 716.4(e) to expressly indicate that, ``if a facility does not have access to records for activities that took place under previous ownership, because such records were not transferred to the current owner of the facility by the previous owner (e.g., as part of the contract involving the sale of the facility), the previous owner must make such records available to the Host Team for provision to the Inspection Team * * *.'' The current owner of a facility, upon receiving notification of an inspection, would be responsible for informing BIS if the previous owner did not transfer records for activities that took place under the previous ownership--this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities. BIS is also amending Section 721.2(a) of the CWCR, consistent with the clarifications to Section 716.4, to specify that ``in the event that a declared facility is sold, the previous owner of the facility must retain all * * * supporting materials and documentation that were not transferred to the current owner of the facility (e.g., as part of the contract involving the sale of the facility)--otherwise, the current owner of the facility is responsible for retaining such supporting materials and documentation.'' In addition, if the previous owner of a declared facility decides to retain such supporting materials and documentation, the owner must inform BIS of any subsequent change in address or other contact information, so that BIS will be able to contact the previous owner, to arrange for access to the records, in the event that BIS deems them relevant to inspection activities involving the facility. J. Section 716.10 ``Post-Inspection Activities'' Comments: Two respondents stated that the CWCR do not provide a time frame for the submission of a facility's comments on a final inspection report from the OPCW. The respondents suggested that BIS establish a time frame that coincides with the deadline for the submission of inspection-related amendments (45 calendar days). Response: The respondents were correct in noting that the CWCR do not establish a specific deadline for an inspected facility to submit comments on a final inspection report. The CWC requires that State Parties submit comments on a final inspection report, to the Director- General of the Technical Secretariat of the OPCW, not later than 30 days following the completion of an inspection. As a courtesy, BIS has provided companies with the opportunity to review and comment on the inspection report, but is under no obligation to await or incorporate such comments in the final submission to the OPCW. However, BIS notes the utility of a deadline for the submission of comments by facilities on the final inspection report. Therefore, BIS has amended the CWCR to allow inspected facilities a minimum of 7 working days, from the time they receive a copy of the final inspection report, to submit their comments on the report. K. Part 717 ``Challenge inspections'' Comments: The same respondent, who commented on adding a provision that would allow companies to supply advance consent for routine inspections (see comments on Section 716.3(a), above), suggested that BIS should also provide for advance consent to challenge inspections. Response: For the reasons stated in its response to the respondent's comments on Section 716.3(a) of the CWCR, BIS will not amend the CWCR to provide for the submission of advance consent to challenge inspections. (For further discussion of the basis for this decision, see the BIS response to the comments received for Section 716.3(a), above.) [[Page 24927]] L. Section 717.2(a) and (b) ``Warrants'' and ``Notification of Challenge Inspection'' Comments: One respondent stated that the challenge inspection procedures in Part 717 of the proposed CWCR do not contain provisions analogous to the initial/routine inspection procedures in either Section 716.3(a), which states that the owner, operator, or agent in charge of a facility may consent to an inspection, or Section 716.5(a)(1)(ii), which provides that BIS's inspection notification will include a request that the facility indicate whether it will consent to an inspection. The respondent noted that, while obtaining the consent of the owner, operator, or agent in charge of a facility to an inspection is not expressly stated in Part 717, it is implied because Section 717.2(a) of the proposed rule indicates that failure to provide consent will result in the issuance of a criminal warrant. The respondent felt that part 717 of the proposed rule creates ambiguity and uncertainty, because it does not expressly indicate whether or how BIS would request a facility's consent to an inspection, and suggested that the following sentences be added to Sections 717.2(a) and 717.2(b)(2)(ii): Section 717.2(a)--``The owner, operator, occupant or agent in charge of a facility may consent to a challenge inspection. The individual giving consent on behalf of the facility represents that he or she has the authority to make this decision for the facility.'' Section 717.2(b)(2)(ii)--``In addition to appropriate information provided by the OPCW in its notification to the USNA, BIS's inspection notification to the facility will request that the facility indicate whether it will consent to an inspection and will state whether an advance team is available to assist the site in preparation for the inspection.'' Response: BIS has amended Sections 717.2(a) and 717.2(b)(2)(ii) of the CWCR to expressly indicate that BIS will request the owner, operator, or agent in charge of a facility to provide consent prior to a challenge inspection of the facility. M. Typographical Errors Comment: One respondent indicated that there were two typographical errors in the Supplementary Information part of the CWCR proposed rule, under Part I (``Summary of CWCR Changes Contained in This Proposed Rule''), section (G), titled ``Proposed Amendments to Part 713 of the CWCR (Activities Involving Schedule 2 Chemicals).'' The respondent stated that BIS should add an ``s'' to the word ``prohibit,'' in the second sentence of the first paragraph under section (G), and delete the word ``not'' from the phrase ``not packaged for retail sale for personal use,'' in the last sentence of the second paragraph under section (G). Response: The word ``prohibit,'' in the second sentence of the first paragraph in section (G), is intended to modify ``Chemical Weapons Convention Regulations.'' Because the word ``regulations'' is plural, the use of the word ``prohibit'' is appropriate in this sentence. BIS has amended the last sentence of the second paragraph in section (G) by removing the word ``not'' from the phrase ``not packaged for retail sale for personal use.'' Rulemaking Requirements 1. This final rule has been determined to be significant for purposes of E.O. 12866. 2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule revises an existing collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0091 (Chemical Weapons Convention--Declaration and Report Forms), which carries burden hour estimates of 10.6 hours for Schedule 1 Chemicals, 11.9 hours for Schedule 2 chemicals, 2.5 hours for Schedule 3 chemicals, 5.3/5.1 for unscheduled discrete organic chemicals, and 0.17 hours for Schedule 1 notifications. This rule adds a new Section 711.3 to the Chemical Weapons Convention Regulations (CWCR) that authorizes BIS to contact any facility to request information concerning production, processing, consumption, export, import, or other activities involving scheduled chemicals and UDOCs, described in Parts 712 through 715 of the CWCR, in order to determine whether or not the facility is in compliance with the CWCR. This new requirement applies to all persons and facilities that are subject to the reporting or declaration provisions of the CWCR, as set forth in Part 721. The total estimated annual burden hours for the compliance reviews authorized under new Section 711.3 would be 85 hours and the total estimated annual cost would be $3,236.46. This rule also adds a new requirement for the submission of amendments (to previously submitted declarations and reports) resulting from inspection findings. The total estimated annual burden hours for this new amendment requirement would be 112 hours and the total estimated annual cost would be $4,267. Note that the estimated burden hours and cost for inspection related amendments are already included in the information collection authorization from OMB. Therefore, to avoid double counting the information, it does not appear as a separate line item under the revision to the information collection for this final rule. Finally, this rule adds a new reporting form, entitled ``No Changes Authorization Form,'' for UDOC facilities to use, if appropriate, for certifying that there are no changes to the information declared in a UDOC facility's prior year's annual declaration on past activities. This new form will reduce industry's estimated annual burden by 15 hours and $571.50. Note that, like the information related to inspection-related amendments, the estimated burden hours and cost for implementing the ``No Changes Authorization Form'' are included in a prior information collection authorization from OMB. In conclusion, the total estimated annual burden hours for declarations, reports, amendments, and requests for compliance-related information under this final rule will increase from 4401 burden hours to 4471 burden hours. The changes made by this rule are addressed under two separate information collection submissions. Comments are invited on: (i) Whether the collection of information is necessary for the functions of the agency, including whether the information shall have practical utility; (ii) the accuracy of the agency's estimate of the information collection burden; (iii) ways to enhance the quality, utility, and clarity of the information to be collected; and (iv) ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e- mail to [email protected], or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044. 3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132. [[Page 24928]] 4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Under section 605(b) of the RFA, however, if the head of an agency certifies that a rule will not have a significant economic impact on a substantial number of small entities, the statute does not require the agency to prepare a regulatory flexibility analysis. Pursuant to section 605(b), the Chief Counsel for Regulations, Department of Commerce, certified to the Chief Counsel for Advocacy, Small Business Administration, that the promulgation of this final rule will not have a significant economic impact on a substantial number of small entities for the reasons explained below. Consequently, BIS has not prepared a regulatory flexibility analysis. Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business according to RFA default definitions for small business (based on SBA size standards), (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000, and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. BIS has determined that this final rule would affect only the first category of small entities (i.e., small businesses). The President reported to the Congress, in December 2003, as required under section 309 of the CWC Implementation Act, that 297 U.S. companies representing 691 facilities, plant sites, and trading companies were subject to the declaration and reporting requirements under the Chemical Weapons Convention Regulations (CWCR). Although BIS estimates that the majority of these 297 companies are substantially sized businesses, having more than 500 employees, BIS does not have sufficient information on these companies to definitively characterize them as large entities. The Small Business Administration (SBA) has established standards for what constitutes a small business, with respect to each of the Standard Industrial Classification (SIC) code categories for ``Chemicals and Allied Products.'' However, BIS is not able to determine which of these SIC code categories apply to the companies that are subject to the declaration, reporting, advance notification, recordkeeping or inspection requirements of this rule. Therefore, for the purpose of assessing the impact of this final rule, BIS assumes that the 297 companies are small entities. Although this final rule will affect a substantial number of small entities (i.e., 297 companies), the additional recordkeeping and reporting requirements imposed by this rule will not have a significant economic impact on these entities. First, this rule adds a new section 711.3 that authorizes BIS to contact any facility to determine whether or not it is in compliance with the CWCR. The information that BIS is authorized to request concerns production, processing, consumption, export, import, or other activities involving scheduled chemicals and UDOCs described in parts 712 through 715 of the CWCR. This new requirement applies to all persons and facilities subject to the reporting or declaration provisions of the CWCR, as set forth in part 721. The total estimated annual burden hours for the compliance reviews authorized under new section 711.3 would be 85 hours and the total estimated annual cost would be $3,236.46. Second, this rule adds a new requirement for the submission of amendments (to previously submitted declarations and reports) resulting from inspection findings. The total estimated annual burden hours for the new amendment requirement would be 112 hours and the total estimated annual cost would be $4,267. Finally, this rule adds a new reporting form, entitled ``No Changes Authorization Form,'' for UDOC facilities to use, if appropriate, for certifying that there are no changes to the information declared in a UDOC facility's prior year's annual declaration on past activities. This new form will reduce industry's estimated annual burden by 15 hours and $571.50. The total estimated increase in annual burden hours to implement the additional recordkeeping and reporting requirements described above would be 197 burden hours and the total estimated annual cost would be $7,503.46. The total cost of these recordkeeping and reporting requirements would represent only a small percentage of the revenues generated by the affected companies. Although this final rule will affect a substantial number of small entities (i.e., 297 companies), the total economic impact on the affected entities (i.e., $7,503.46) will not be significant. Since the revisions that this rule makes to the CWCR will not impose a significant economic impact on a substantial number of small entities, BIS did not prepare a regulatory flexibility analysis for this rule. Finally, the changes made by this rule should be viewed in light of the fact that BIS's discretion in formulating the declaration, reporting and advance notification, and recordkeeping requirements of the CWCR is limited by the Chemical Weapons Convention (the Convention). The Organization for the Prohibition of Chemical Weapons (OPCW) has issued forms for States Parties to use for declarations. In drafting the CWCR requirements and the forms for U.S. persons to use, BIS has consistently interpreted the Convention's requirements as narrowly as possible to ensure that only information that the United States National Authority must declare to the OPCW is to be submitted to BIS. Other States Parties, such as Canada, have imposed much broader reporting requirements on their industries, with the government taking on the responsibility of determining which of the information collected must be declared to the OPCW. In addition, certain declaration requirements of the Convention are subject to interpretation by States Parties. Until the Conference of States Parties establishes clear rules for these requirements, States Parties may use their ``national discretion'' to implement them. ``National discretion'' generally means a reasonable interpretation of the requirement. For requirements currently subject to ``national discretion,'' BIS has adopted in this rule the minimum requirements consistent with a reasonable reading of the Convention, keeping in mind its purposes and objectives. List of Subjects 15 CFR Part 710 Chemicals, Exports, Foreign Trade, Imports, Treaties. 15 CFR Part 711 Chemicals, Confidential business information, Reporting and recordkeeping requirements. [[Page 24929]] 15 CFR Part 712 Chemicals, Exports, Foreign Trade, Imports, Reporting and recordkeeping requirements. 15 CFR Part 713 Chemicals, Exports, Foreign Trade, Imports, Reporting and recordkeeping requirements. 15 CFR Part 714 Chemicals, Exports, Foreign Trade, Imports, Reporting and recordkeeping requirements. 15 CFR Part 715 Chemicals, Exports, Foreign Trade, Imports, Reporting and recordkeeping requirements. 15 CFR Part 716 Chemicals, Confidential business information, Reporting and recordkeeping requirements, Search warrant, Treaties. 15 CFR Part 717 Chemicals, Confidential business information, Reporting and recordkeeping requirements, Search warrant, Treaties. 15 CFR Part 718 Confidential business information, Reporting and recordkeeping requirements. 15 CFR Part 719 Administrative proceedings, Exports, Imports, Penalties, Violations. 15 CFR Part 720 Penalties, violations. 15 CFR Part 721 Reporting and recordkeeping requirements. 0 Accordingly, the Chemical Weapons Convention Regulations, 15 CFR, chapter VII, subchapter B, parts 710 through 722, are revised to read as follows: PART 710--GENERAL INFORMATION AND OVERVIEW OF THE CHEMICAL WEAPONS CONVENTION REGULATIONS (CWCR) Sec. 710.1 Definitions of terms used in the Chemical Weapons Convention Regulations (CWCR). 710.2 Scope of the CWCR. 710.3 Purposes of the Convention and CWCR. 710.4 Overview of scheduled chemicals and examples of affected industries. 710.5 Authority. 710.6 Relationship between the Chemical Weapons Convention Regulations and the Export Administration Regulations, the International Traffic in Arms Regulations, and the Alcohol, Tobacco, Firearms, and Explosives Regulations. Supplement No. 1 to Part 710--States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction Supplement No. 2 to Part 710--Definitions of Production Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 710.1 Definitions of terms used in the Chemical Weapons Convention Regulations (CWCR). The following are definitions of terms used in the CWCR (parts 710 through 729 of this subchapter, unless otherwise noted): Act (The). Means the Chemical Weapons Convention Implementation Act of 1998 (22 U.S.C. 6701 et seq.). Advance Notification. Means a notice informing BIS of a company's intention to export to or import from a State Party a Schedule 1 chemical. This advance notification must be submitted to BIS at least 45 days prior to the date of export or import (except for transfers of 5 milligrams or less of saxitoxin for medical/diagnostic purposes, which must be submitted to BIS at least 3 days prior to export or import). BIS will inform the company in writing of the earliest date the shipment may occur under the advance notification procedure. This advance notification requirement is imposed in addition to any export license requirements under the Department of Commerce's Export Administration Regulations (15 CFR parts 730 through 799) or the Department of State's International Traffic in Arms Regulations (22 CFR parts 120 through 130) or any import license requirements under the Department of Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives Regulations (27 CFR part 447). Bureau of Industry and Security (BIS). Means the Bureau of Industry and Security of the United States Department of Commerce, including Export Administration and Export Enforcement. By-product. Means any chemical substance or mixture produced without a separate commercial intent during the manufacture, processing, use or disposal of another chemical substance or mixture. Chemical Weapon. Means the following, together or separately: (1) Toxic chemicals and their precursors, except where intended for purposes not prohibited under the Chemical Weapons Convention (CWC), provided that the type and quantity are consistent with such purposes; (2) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in paragraph (1) of this definition, which would be released as a result of the employment of such munitions and devices; (3) Any equipment specifically designed for use directly in connection with the employment of munitions or devices specified in paragraph (2) of this definition. Chemical Weapons Convention (CWC or Convention). Means the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, and its annexes opened for signature on January 13, 1993. Chemical Weapons Convention Regulations (CWCR). Means the regulations contained in 15 CFR parts 710 through 729. Consumption. Consumption of a chemical means its conversion into another chemical via a chemical reaction. Unreacted material must be accounted for as either waste or as recycled starting material. Declaration or report form. Means a multi-purpose form to be submitted to BIS regarding activities involving Schedule 1, Schedule 2, Schedule 3, or unscheduled discrete organic chemicals. Declaration forms will be used by facilities that have data declaration obligations under the CWCR and are ``declared'' facilities whose facility-specific information will be transmitted to the OPCW. Report forms will be used by entities that are ``undeclared'' facilities or trading companies that have limited reporting requirements for only export and import activities under the CWCR and whose facility-specific information will not be transmitted to the OPCW. Information from declared facilities, undeclared facilities and trading companies will also be used to compile U.S. national aggregate figures on the production, processing, consumption, export and import of specific chemicals. See also related definitions of declared facility, undeclared facility and report. Declared facility or plant site. Means a facility or plant site that submits declarations of activities involving Schedule 1, Schedule 2, Schedule 3, or unscheduled discrete organic chemicals above specified threshold quantities. Discrete organic chemical. Means any chemical belonging to the class of chemical compounds consisting of all compounds of carbon, except for its [[Page 24930]] oxides, sulfides, and metal carbonates, identifiable by chemical name, by structural formula, if known, and by Chemical Abstract Service registry number, if assigned. (Also see the definition for unscheduled discrete organic chemical.) Domestic transfer. Means, with regard to declaration requirements for Schedule 1 chemicals under the CWCR, any movement of any amount of a Schedule 1 chemical outside the geographical boundary of a facility in the United States to another destination in the United States, for any purpose. Also means, with regard to declaration requirements for Schedule 2 and Schedule 3 chemicals under the CWCR, movement of a Schedule 2 or Schedule 3 chemical in quantities and concentrations greater than specified thresholds, outside the geographical boundary of a facility in the United States, to another destination in the United States, for any purpose. Domestic transfer includes movement between two divisions of one company or a sale from one company to another. Note that any movement to or from a facility outside the United States is considered an export or import for reporting purposes, not a domestic transfer. (Also see definition of United States.) EAR. Means the Export Administration Regulations (15 CFR parts 730- 799). Explosive. Means a chemical (or a mixture of chemicals) that is included in Class 1 of the United Nations Organization hazard classification system. Facility. Means any plant site, plant or unit. Facility Agreement. Means a written agreement or arrangement between a State Party and the Organization relating to a specific facility subject to on-site verification pursuant to Articles IV, V, and VI of the Convention. Host Team. Means the U.S. Government team that accompanies the inspection team from the Organization for the Prohibition of Chemical Weapons during a CWC inspection for which the regulations in the CWCR apply. Host Team Leader. Means the representative from the Department of Commerce who heads the U.S. Government team that accompanies the Inspection Team during a CWC inspection for which the regulations in the CWCR apply. Hydrocarbon. Means any organic compound that contains only carbon and hydrogen. Impurity. Means a chemical substance unintentionally present with another chemical substance or mixture. Inspection Notification. Means a written announcement to a plant site by the United States National Authority (USNA) or the BIS Host Team of an impending inspection under the Convention. Inspection Site. Means any facility or area at which an inspection is carried out and which is specifically defined in the respective facility agreement or inspection request or mandate or inspection request as expanded by the alternative or final perimeter. Inspection Team. Means the group of inspectors and inspection assistants assigned by the Director-General of the Technical Secretariat to conduct a particular inspection. Intermediate. Means a chemical formed through chemical reaction that is subsequently reacted to form another chemical. ITAR. Means the International Traffic in Arms Regulations (22 CFR parts 120-130). Organization for the Prohibition of Chemical Weapons (OPCW). Means the international organization, located in The Hague, the Netherlands, that administers the CWC. Person. Means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, any State or any political subdivision thereof, or any political entity within a State, any foreign government or nation or any agency, instrumentality or political subdivision of any such government or nation, or other entity located in the United States. Plant. Means a relatively self-contained area, structure or building containing one or more units with auxiliary and associated infrastructure, such as: (1) Small administrative area; (2) Storage/handling areas for feedstock and products; (3) Effluent/waste handling/treatment area; (4) Control/analytical laboratory; (5) First aid service/related medical section; and (6) Records associated with the movement into, around, and from the site, of declared chemicals and their feedstock or product chemicals formed from them, as appropriate. Plant site. Means the local integration of one or more plants, with any intermediate administrative levels, which are under one operational control, and includes common infrastructure, such as: (1) Administration and other offices; (2) Repair and maintenance shops; (3) Medical center; (4) Utilities; (5) Central analytical laboratory; (6) Research and development laboratories; (7) Central effluent and waste treatment area; and (8) Warehouse storage. Precursor. Means any chemical reactant which takes part, at any stage in the production, by whatever method, of a toxic chemical. The term includes any key component of a binary or multicomponent chemical system. Processing. Means a physical process such as formulation, extraction and purification in which a chemical is not converted into another chemical. Production. Means the formation of a chemical through chemical reaction, including biochemical or biologically mediated reaction (see Supplement No. 2 to this part). (1) Production of Schedule 1 chemicals means formation through chemical synthesis as well as processing to extract and isolate Schedule 1 chemicals. (2) Production of a Schedule 2 or Schedule 3 chemical means all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared. Production by synthesis. Means production of a chemical from its reactants. Protective purposes in relation to Schedule 1 chemicals. Means any purpose directly related to protection against toxic chemicals and to protection against chemical weapons. Further means the Schedule 1 chemical is used for determining the adequacy of defense equipment and measures. Purposes not prohibited by the CWC. Means the following: (1) Any peaceful purpose related to an industrial, agricultural, research, medical or pharmaceutical activity or other activity; (2) Any purpose directly related to protection against toxic chemicals and to protection against chemical weapons; (3) Any military purpose of the United States that is not connected with the use of a chemical weapon and that is not dependent on the use of the toxic or poisonous properties of the chemical weapon to cause death or other harm; or (4) Any law enforcement purpose, including any domestic riot control [[Page 24931]] purpose and including imposition of capital punishment. Report. Means information due to BIS on exports and imports of Schedule 1, Schedule 2 or Schedule 3 chemicals above applicable thresholds. Such information is included in the national aggregate declaration transmitted to the OPCW. Facility-specific information is not included in the national aggregate declaration. Note: This definition does not apply to parts 719 and 720 of the CWCR (see the definition of ``report'' in Sec. 719.1(b) of the CWCR). Schedules of Chemicals. Means specific lists of toxic chemicals, groups of chemicals, and precursors contained in the CWC. See Supplements No. 1 to parts 712 through 714 of the CWCR. State Party. Means a country for which the CWC is in force. See Supplement No. 1 to this part. Storage. For purposes of Schedule 1 chemical reporting, means any quantity that is not accounted for under the categories of production, export, import, consumption or domestic transfer. Technical Secretariat. Means the organ of the OPCW charged with carrying out administrative and technical support functions for the OPCW, including carrying out the verification measures delineated in the CWC. Toxic Chemical. Means any chemical which, through its chemical action on life processes, can cause death, temporary incapacitation, or permanent harm to humans or animals. The term includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions, or elsewhere. Toxic chemicals that have been identified for the application of verification measures are in schedules contained in Supplements No. 1 to parts 712 through 714 of the CWCR. Trading company. Means any person involved in the export and/or import of scheduled chemicals in amounts greater than specified thresholds, but not in the production, processing or consumption of such chemicals in amounts greater than threshold amounts requiring declaration. If such persons exclusively export or import scheduled chemicals in amounts greater than specified thresholds, they are subject to reporting requirements but are not subject to routine inspections. Such persons must be the principal party in interest of the exports or imports and may not delegate CWC reporting responsibilities to a forwarding or other agent. Transfer. See domestic transfer. Transient intermediate. Means any chemical which is produced in a chemical process but, because it is in a transition state in terms of thermodynamics and kinetics, exists only for a very short period of time, and cannot be isolated, even by modifying or dismantling the plant, or altering process operating conditions, or by stopping the process altogether. Undeclared facility or plant site. Means a facility or plant site that is not subject to declaration requirements because of past or anticipated production, processing or consumption involving scheduled or unscheduled discrete organic chemicals above specified threshold quantities. However, such facilities and plant sites may have a reporting requirement for exports or imports of such chemicals. Unit. Means the combination of those items of equipment, including vessels and vessel set up, necessary for the production, processing or consumption of a chemical. United States. Means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States, and includes all places under the jurisdiction or control of the United States, including any of the places within the provisions of paragraph (41) of section 40102 of Title 49 of the United States Code, any civil aircraft of the United States or public aircraft, as such terms are defined in paragraphs (1) and (37), respectively, of section 40102 of Title 49 of the United States Code, and any vessel of the United States, as such term is defined in section 3(b) of the Maritime Drug Enforcement Act, as amended (section 1903(b) of Title 46 App. of the United States Code). United States National Authority (USNA). Means the Department of State serving as the national focal point for the effective liaison with the Organization for the Prohibition of Chemical Weapons and other States Parties to the Convention and implementing the provisions of the Chemical Weapons Convention Implementation Act of 1998 in coordination with an interagency group designated by the President consisting of the Secretary of Commerce, Secretary of Defense, Secretary of Energy, the Attorney General, and the heads of other agencies considered necessary or advisable by the President, or their designees. The Secretary of State is the Director of the USNA. Unscheduled chemical. Means a chemical that is not contained in Schedule 1, Schedule 2, or Schedule 3 (see Supplements No. 1 to parts 712 through 714 of the CWCR). Unscheduled Discrete Organic Chemical (UDOC). Means any ``discrete organic chemical'' that is not contained in the Schedules of Chemicals (see Supplements No. 1 to parts 712 through 714 of the CWCR) and subject to the declaration requirements of part 715 of the CWCR. Unscheduled discrete organic chemicals subject to declaration under the CWCR are those produced by synthesis that are isolated for use or sale as a specific end-product. You. The term ``you'' or ``your'' means any person (see also definition of ``person''). With regard to the declaration and reporting requirements of the CWCR, ``you'' refers to persons that have an obligation to report certain activities under the provisions of the CWCR. Sec. 710.2 Scope of the CWCR. The Chemical Weapons Convention Regulations (parts 710 through 729 of this subchapter), or CWCR, implement certain obligations of the United States under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, known as the CWC or Convention. (a) Persons and facilities subject to the CWCR. (1) The CWCR apply to all persons and facilities located in the United States, except the following U.S. Government facilities: (i) Department of Defense facilities; (ii) Department of Energy facilities; and (iii) Facilities of other U.S. Government agencies that notify the USNA of their decision to be excluded from the CWCR. (2) For purposes of the CWCR, ``United States Government facilities'' are those facilities owned and operated by a U.S. Government agency (including those operated by contractors to the agency), and those facilities leased to and operated by a U.S. Government agency (including those operated by contractors to the agency). ``United States Government facilities'' do not include facilities owned by a U.S. Government agency and leased to a private company or other entity such that the private company or entity may independently decide for what purposes to use the facilities. (b) Activities subject to the CWCR. The activities subject to the CWCR (parts 710 through 729 of this subchapter) are activities, including production, processing, consumption, exports and imports, involving chemicals further described in parts 712 through 715 of the CWCR. These do not include activities involving inorganic [[Page 24932]] chemicals other than those listed in the Schedules of Chemicals, or other specifically exempted unscheduled discrete organic chemicals. Sec. 710.3 Purposes of the Convention and CWCR. (a) Purposes of the Convention. (1) The Convention imposes upon the United States, as a State Party, certain declaration, inspection, and other obligations. In addition, the United States and other States Parties to the Convention undertake never under any circumstances to: (i) Develop, produce, otherwise acquire, stockpile, or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; (ii) Use chemical weapons; (iii) Engage in any military preparations to use chemical weapons; or (iv) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited by the Convention. (2) One objective of the Convention is to assure States Parties that lawful activities of chemical producers and users are not converted to unlawful activities related to chemical weapons. To achieve this objective and to give States Parties a mechanism to verify compliance, the Convention requires the United States and all other States Parties to submit declarations concerning chemical production, consumption, processing and other activities, and to permit international inspections within their borders. (b) Purposes of the Chemical Weapons Convention Regulations. To fulfill the United States' obligations under the Convention, the CWCR (parts 710 through 729 of this subchapter) prohibit certain activities, and compel the submission of information from all facilities in the United States, except for Department of Defense and Department of Energy facilities and facilities of other U.S. Government agencies that notify the USNA of their decision to be excluded from the CWCR on activities, including exports and imports of scheduled chemicals and certain information regarding unscheduled discrete organic chemicals as described in parts 712 through 715 of the CWCR. U.S. Government facilities are those owned by or leased to the U.S. Government, including facilities that are contractor-operated. The CWCR also require access for on-site inspections and monitoring by the OPCW, as described in parts 716 and 717 of the CWCR. Sec. 710.4 Overview of scheduled chemicals and examples of affected industries. The following provides examples of the types of industries that may be affected by the CWCR (parts 710 through 729 of this subchapter). These examples are not exhaustive, and you should refer to parts 712 through 715 of the CWCR to determine your obligations. (a) Schedule 1 chemicals are listed in Supplement No. 1 to part 712 of the CWCR. Schedule 1 chemicals have little or no use in industrial and agricultural industries, but may have limited use for research, pharmaceutical, medical, public health, or protective purposes. (b) Schedule 2 chemicals are listed in Supplement No. 1 to part 713 of the CWCR. Although Schedule 2 chemicals may be useful in the production of chemical weapons, they also have legitimate uses in areas such as: (1) Flame retardant additives and research; (2) Dye and photographic industries (e.g., printing ink, ball point pen fluids, copy mediums, paints, etc.); (3) Medical and pharmaceutical preparation (e.g., anticholinergics, arsenicals, tranquilizer preparations); (4) Metal plating preparations; (5) Epoxy resins; and (6) Insecticides, herbicides, fungicides, defoliants, and rodenticides. (c) Schedule 3 chemicals are listed in Supplement No. 1 to part 714 of the CWCR. Although Schedule 3 chemicals may be useful in the production of chemical weapons, they also have legitimate uses in areas such as: (1) The production of: (i) Resins; (ii) Plastics; (iii) Pharmaceuticals; (iv) Pesticides; (v) Batteries; (vi) Cyanic acid; (vii) Toiletries, including perfumes and scents; (viii) Organic phosphate esters (e.g., hydraulic fluids, flame retardants, surfactants, and sequestering agents); and (2) Leather tannery and finishing supplies. (d) Unscheduled discrete organic chemicals are used in a wide variety of commercial industries, and include acetone, benzoyl peroxide and propylene glycol. Sec. 710.5 Authority. The CWCR (parts 710 through 729 of this subchapter) implement certain provisions of the Chemical Weapons Convention under the authority of the Chemical Weapons Convention Implementation Act of 1998 (Act), the National Emergencies Act, the International Emergency Economic Powers Act (IEEPA), as amended, and the Export Administration Act of 1979, as amended, by extending verification and trade restriction requirements under Article VI and related parts of the Verification Annex of the Convention to U.S. persons. In Executive Order 13128 of June 25, 1999, the President delegated authority to the Department of Commerce to promulgate regulations to implement the Act, and consistent with the Act, to carry out appropriate functions not otherwise assigned in the Act but necessary to implement certain reporting, monitoring and inspection requirements of the Convention and the Act. Sec. 710.6 Relationship between the Chemical Weapons Convention Regulations and the Export Administration Regulations, the International Traffic in Arms Regulations, and the Alcohol, Tobacco, Firearms and Explosives Regulations. Certain obligations of the U.S. Government under the CWC pertain to exports and imports. The obligations on exports are implemented in the Export Administration Regulations (EAR) (15 CFR parts 730 through 799) and the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130). See in particular Sec. Sec. 742.2 and 742.18 and part 745 of the EAR, and Export Control Classification Numbers 1C350, 1C351, 1C355 and 1C395 of the Commerce Control List (Supplement No. 1 to part 774 of the EAR). The obligations on imports are implemented in the Chemical Weapons Convention Regulations (Sec. Sec. 712.2 and 713.1) and the Alcohol, Tobacco, Firearms and Explosives Regulations in 27 CFR part 447. Supplement No. 1 to Part 710--States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction List of States Parties as of March 25, 2006 Afghanistan Albania Algeria Andorra Antigua and Barbuda Argentina Armenia Australia Austria Azerbaijan Bahrain Bangladesh Belarus Belgium Belize Benin Bhutan [[Page 24933]] Bolivia Bosnia-Herzegovina Botswana Brazil Brunei Darussalam* Bulgaria Burkina Faso Burundi Cambodia Cameroon Canada Cape Verde Chad Chile China*** Colombia Congo (Democratic Republic of the) Cook Islands** Costa Rica Cote d'Ivoire (Ivory Coast) Croatia Cuba Cyprus Czech Republic Denmark Djibouti Dominica Ecuador El Salvador Equatorial Guinea Eritrea Estonia Ethiopia Fiji Finland France Gabon Gambia Georgia Germany Ghana Greece Grenada Guatemala Guinea Guyana Haiti Holy See* Honduras Hungary Iceland India Indonesia Iran (Islamic Republic of) Ireland Italy Jamaica Japan Jordan Kazakhstan Kenya Kiribati Korea (Republic of) Kuwait Kyrgyzstan Laos (P.D.R.)* Latvia Lesotho Liberia Libya Liechtenstein Lithuania Luxembourg Macedonia (The Former Yugoslav Republic of) Madagascar Malawi Malaysia Maldives Mali Malta Marshall Islands Mauritania Mauritius Mexico Micronesia (Federated States of) Moldova (Republic of)* Monaco Mongolia Morocco Mozambique Namibia Nauru Nepal Netherlands*** New Zealand Nicaragua Niger Nigeria Niue** Norway Oman Pakistan Palau Panama Papua New Guinea Paraguay Peru Philippines Poland Portugal Qatar Romania Russian Federation Rwanda Saint Kitts and Nevis Saint Lucia Saint Vincent and the Grenadines Samoa San Marino Sao Tome and Principe Saudi Arabia Senegal Serbia and Montenegro Seychelles Sierra Leone Singapore Slovak Republic* Slovenia Solomon Islands South Africa Spain Sri Lanka Sudan Suriname Swaziland Sweden Switzerland Tajikistan Tanzania, United Republic of Thailand Timor Leste (East Timor) Togo Tonga Trinidad and Tobago Tunisia Turkey Turkmenistan Tuvalu Uganda Ukraine United Arab Emirates United Kingdom United States Uruguay Uzbekistan Vanuatu Venezuela Vietnam Yemen Zambia Zimbabwe * For export control purposes, these destinations are identified using a different nomenclature under the Commerce Country Chart in Supplement No. 1 to part 738 of the Export Administration Regulations (EAR) (15 CFR parts 730-799). ** For export control purposes, Cook Islands and Niue are not identified on the Commerce Country Chart in Supplement No. 1 to part 738 of the EAR and are treated the same as New Zealand, in accordance with Sec. 738.3(b) of the EAR. *** For CWC States Parties purposes, a territory, possession, or department of any country that is listed in this Supplement as a State Party to the CWC, is treated the same as the country of which it is a territory, possession, or department (e.g., China includes Hong Kong and Macau; the Netherlands includes Aruba and the Netherlands Antilles). Supplement No. 2 to Part 710.--Definitions of Production ---------------------------------------------------------------------------------------------------------------- Unscheduled discrete organic Schedule 1 chemicals Schedule 2 and Schedule 3 chemicals chemicals (UDOCs) ---------------------------------------------------------------------------------------------------------------- Produced by a biochemical or biologically mediated reaction Produced by synthesis* ---------------------------------------------------------------------------------------------------------------- Formation through chemical All production steps in any units synthesis. within the same plant which Processing to extract and isolate includes associated processes-- Schedule 1 chemicals. purification, separation, extraction distillation or refining.** ---------------------------------------------------------------------------------------------------------------- * Intermediates used in a single or multi-step process to produce another declared UDOC are not declarable. [[Page 24934]] ** Intermediates are subject to declaration, except ``transient intermediates,'' which are those chemicals in a transition state in terms of thermodynamics and kinetics, that exist only for a very short period of time, and cannot be isolated, even by modifying or dismantling the plant, or by altering process operating conditions, or by stopping the process altogether are not subject to declaration. PART 711--GENERAL INFORMATION REGARDING DECLARATION, REPORTING, AND ADVANCE NOTIFICATION REQUIREMENTS, AND THE ELECTRONIC FILING OF DECLARATIONS AND REPORTS Sec. 711.1 Overviews of declaration, reporting, and advance notification requirements. 711.2 Who submits declarations, reports, and advance notifications? 711.3 Compliance review. 711.4 Assistance in determining your obligations. 711.5 Numerical precision of submitted data. 711.6 Where to obtain forms. 711.7 Where to submit declarations, reports, and advance notifications. 711.8 How to request authorization from BIS to make electronic submissions of declarations or reports. Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 711.1 Overviews of declaration, reporting, and advance notification requirements. Parts 712 through 715 of the CWCR (parts 710 through 729 of this subchapter) describe the declaration, advance notification and reporting requirements for Schedule 1, 2 and 3 chemicals and for unscheduled discrete organic chemicals (UDOCs). For each type of chemical, the Convention requires annual declarations. If, after reviewing parts 712 through 715 of the CWCR, you determine that you have declaration, advance notification or reporting requirements, you may obtain the appropriate forms by contacting the Bureau of Industry and Security (BIS) (see Sec. 711.6 of the CWCR). Sec. 711.2 Who submits declarations, reports, and advance notifications. The owner, operator, or senior management official of a facility subject to declaration, reporting, or advance notification requirements under the CWCR (parts 710 through 729 of this subchapter) is responsible for the submission of all required documents in accordance with all applicable provisions of the CWCR. Sec. 711.3 Compliance review. Periodically, BIS will request information from persons and facilities subject to the CWCR to determine compliance with the reporting, declaration and notification requirements set forth herein. Information requested may relate to the production, processing, consumption, export, import, or other activities involving scheduled chemicals and unscheduled discrete organic chemicals described in parts 712 through 715 of the CWCR. Any person or facility subject to the CWCR and receiving such a request for information will be required to provide a response to BIS within 30 working days of receipt of the request. This requirement does not, in itself, impose a requirement to create new records or maintain existing records in a manner other than that directed by the recordkeeping provisions set forth in part 721 of the CWCR. Sec. 711.4 Assistance in determining your obligations. (a) Determining if your chemical is subject to declaration, reporting or advance notification requirements. (1) If you need assistance in determining if your chemical is classified as a Schedule 1, Schedule 2, or Schedule 3 chemical, or is an unscheduled discrete organic chemical, submit your written request for a chemical determination to BIS. Such requests may be sent via facsimile to (703) 605-4425, e-mailed to [email protected], or mailed to the Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, 1555 Wilson Boulevard, Suite 700, Arlington, Virginia 22209-2405, and must be marked, ``ATTN: Chemical Determination.'' Your request should include the information noted in paragraph (a)(2) of this section to ensure an accurate determination. Also include any additional information that you feel is relevant to the chemical or process involved (see part 718 of the CWCR for provisions regarding treatment of confidential business information). If you are unable to provide all of the information required in paragraph (a)(2) of this section, you should include an explanation identifying the reasons or deficiencies that preclude you from supplying the information. If BIS cannot make a determination based upon the information submitted, BIS will return the request to you and identify the additional information that is necessary to complete a chemical determination. BIS will provide a written response to your chemical determination request within 10 working days of receipt of the request. (2) Include the following information in each chemical determination request: (i) Date of request; (ii) Company name and complete street address; (iii) Point of contact; (iv) Phone and facsimile number of contact; (v) E-mail address of contact, if you want an acknowledgment of receipt sent via e-mail; (vi) Chemical Name; (vii) Structural formula of the chemical, if the chemical is not specifically identified by name and chemical abstract service registry number in Supplements No. 1 to parts 712 through 714 of the CWCR; and (viii) Chemical Abstract Service registry number, if assigned. (b) Other inquiries. If you need assistance in interpreting the provisions of the CWCR or need assistance with declaration, forms, reporting, advance notification, inspection or facility agreement issues, contact BIS's Treaty Compliance Division by phone at (703) 605- 4400. If you require a response from BIS in writing, submit a detailed request to BIS that explains your question, issue, or request. Send the request to the address or facsimile included in paragraph (a) of this section, or e-mail the request to [email protected]. Your request must be marked, ``ATTN: CWCR Assistance.'' Sec. 711.5 Numerical precision of submitted data. Numerical information submitted in declarations and reports is to be provided per applicable rounding rules in each part (i.e., parts 712 through 715 of the CWCR) with a precision equal to that which can be reasonably provided using existing documentation, equipment, and measurement techniques. Sec. 711.6 Where to obtain forms. (a) Forms to complete declarations and reports required by the CWCR may be obtained by contacting: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, 1555 Wilson Blvd., Suite 700, Arlington, VA 22209-2405, Telephone: (703) 605-4400. Forms and forms software may also be downloaded from the Internet at www.cwc.gov. (b) If the amount of information you are required to submit is greater than the given form will allow, multiple copies of forms may be submitted. Sec. 711.7 Where to submit declarations, reports and advanced notifications. Declarations, reports and advance notifications required by the CWCR [[Page 24935]] must be sent to: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, 1555 Wilson Blvd., Suite 700, Arlington, VA 22209-2405, Telephone: (703) 605-4400. Advanced notifications may also be sent by facsimile to (703) 235-1481. Specific types of declarations and reports and due dates are outlined in Supplement No. 2 to parts 712 through 715 of the CWCR. Sec. 711.8 How to request authorization from BIS to make electronic submissions of declarations or reports. (a) Scope. This section provides an optional method of submitting declarations or reports. Specifically, this section applies to the electronic submission of declarations and reports required under the CWCR. If you choose to submit declarations and reports by electronic means, all such electronic submissions must be made through the Web- Data Entry System for Industry (Web-DESI), which can be accessed on the CWC web site at www.cwc.gov. (b) Authorization. If you or your company has a facility, plant site, or trading company that has been assigned a U.S. Code Number (USC Number), you may submit declarations and reports electronically, once you have received authorization from BIS to do so. An authorization to submit declarations and reports electronically may be limited or withdrawn by BIS at any time. There are no prerequisites for obtaining permission to submit electronically, nor are there any limitations with regard to the types of declarations or reports that are eligible for electronic submission. However, BIS may direct, for any reason, that any electronic declaration or report be resubmitted in writing, either in whole or in part. (1) Requesting approval to submit declarations and reports electronically. To submit declarations and reports electronically, you or your company must submit a written request to BIS at the address identified in Sec. 711.6 of the CWCR. Both the envelope and letter must be marked, ``ATTN: Electronic Declaration or Report Request.'' Your request should be on company letterhead and must contain your name or the company's name, your mailing address at the company, the name of the facility, plant site or trading company and its U.S. Code Number, the address of the facility, plant site or trading company (this address may be different from the mailing address), the list of persons who are authorized to view, edit, and/or submit declarations and reports on behalf of your company, and the telephone number and name and title of the owner, operator, or senior management official responsible for certifying that each person listed in the request is authorized to view, edit, and/or submit declarations and reports on behalf of you or your company (i.e., the certifying official). Additional information required for submitting electronic declarations and reports may be found on BIS's Web site at www.cwc.gov. Once you have completed and submitted the necessary certifications, BIS will review your request for authorization to view, edit, and/or submit declarations and reports electronically. BIS will notify you if additional information is required and/or upon completion of its review. Note to Sec. 711.8(b)(1): You must submit a separate request for each facility, plant site or trading company owned by your company (e.g., each site that is assigned a unique U.S. Code Number). (2) Assignment and use of passwords for facilities, plant sites and trading companies (USC password) and Web-DESI user accounts (user name and password). (i) Each person, facility, plant site or trading company authorized to submit declarations and reports electronically will be assigned a password (USC password) that must be used in conjunction with the U.S.C. Number. Each person authorized by BIS to view, edit, and/or submit declarations and reports electronically for a facility, plant site or trading company will be assigned a Web-DESI user account (user name and password) telephonically by BIS. A Web-DESI user account will be assigned to you only if your company has certified to BIS that you are authorized to act for it in viewing, editing, and/or submitting electronic declarations and reports under the CWCR. Note to Sec. 711.8(b)(2)(i): When persons must have access to multiple Web-DESI accounts, their companies must identify such persons on the approval request for each of these Web-DESI accounts. BIS will coordinate with such persons to ensure that the assigned user name and password is the same for each account. (ii) Your company may reveal the facility, plant site or trading company password (USC password) only to Web-DESI users with valid passwords, their supervisors, and employees or agents of the company with a commercial justification for knowing the password. (iii) If you are an authorized Web-DESI account user, you may not: (A) Disclose your user name or password to anyone; (B) Record your user name or password, either in writing or electronically; (C) Authorize another person to use your user name or password; or (D) Use your user name or password following termination, either by BIS or by your company, of your authorization or approval for Web-DESI use. (iv) To prevent misuse of the Web-DESI account: (A) If Web-DESI user account information (i.e., user name and password) is lost, stolen or otherwise compromised, the company and the user must report the loss, theft or compromise of the user account information, immediately, by calling BIS at (703) 235-1335. Within two business days of making the report, the company and the user must submit written confirmation to BIS at the address provided in Sec. 711.6 of the CWCR. (B) Your company is responsible for immediately notifying BIS whenever a Web-DESI user leaves the employ of the company or otherwise ceases to be authorized by the company to submit declarations and reports electronically on its behalf. (v) No person may use, copy, appropriate or otherwise compromise a Web-DESI account user name or password assigned to another person. No person, except a person authorized access by the company, may use or copy the facility, plant site or trading company password (USC password), nor may any person steal or otherwise compromise this password. (c) Electronic submission of declarations and reports--(1) General instructions. Upon submission of the required certifications and approval of the company's request to use electronic submission, BIS will provide instructions on both the method for transmitting declarations and reports electronically and the process for submitting required supporting documents, if any. These instructions may be modified by BIS from time to time. (2) Declarations and reports. The electronic submission of a declaration or report will constitute an official document as required under parts 712 through 715 of the CWCR. Such submissions must provide the same information as written declarations and reports and are subject to the recordkeeping provisions of part 720 of the CWCR. The company and Web-DESI user submitting the declaration or report will be deemed to have made all representations and certifications as if the submission were made in writing by the company and signed by the certifying official. Electronic submission of a declaration or report will be [[Page 24936]] considered complete upon transmittal to BIS. (d) Updating. A company approved for electronic submission of declarations or reports under Web-DESI must promptly notify BIS of any change in its name, ownership or address. If your company wishes to have a person added as a Web-DESI user, your company must inform BIS and follow the instructions provided by BIS. Your company should conduct periodic reviews to ensure that the company's designated certifying official and Web-DESI users are persons whose current responsibilities make it necessary and appropriate that they act for the company in either capacity. PART 712--ACTIVITIES INVOLVING SCHEDULE 1 CHEMICALS Sec. 712.1 Round to zero rule that applies to activities involving Schedule 1 chemicals. 712.2 Restrictions on activities involving Schedule 1 chemicals. 712.3 Initial declaration requirements for declared facilities which are engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC. 712.4 New Schedule 1 production facility. 712.5 Annual declaration requirements for facilities engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC. 712.6 Advance notification and annual report of all exports and imports of Schedule 1 chemicals to, or from, other States Parties. 712.7 Amended declaration or report. 712.8 Declarations and reports returned without action by BIS. 712.9 Deadlines for submission of Schedule 1 declarations, reports, advance notifications, and amendments. Supplement No. 1 to Part 712--Schedule 1 Chemicals Supplement No. 2 to Part 712--Deadlines for Submission of Schedule 1 Declarations, Reports, Advance Notifications, Reports, and Amendments Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p. 200; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 712.1 Round to zero rule that applies to activities involving Schedule 1 chemicals. Facilities that produce, export or import mixtures containing less than 0.5% aggregate quantities of Schedule 1 chemicals (see Supplement No. 1 to this part) as unavoidable by-products or impurities may round to zero and are not subject to the provisions of this part 712. Schedule 1 content may be calculated by volume or weight, whichever yields the lesser percent. Note that such mixtures may be subject to the regulatory requirements of other federal agencies. Sec. 712.2 Restrictions on activities involving Schedule 1 chemicals. (a) You may not produce Schedule 1 chemicals for protective purposes. (b) You may not import any Schedule 1 chemical unless: (1) The import is from a State Party; (2) The import is for research, medical, pharmaceutical, or protective purposes; (3) The import is in types and quantities strictly limited to those that can be justified for such purposes; and (4) You have notified BIS at least 45 calendar days prior to the import, pursuant to Sec. 712.6 of the CWCR. Note 1 to Sec. 712.2(b): Pursuant to Sec. 712.6, advance notifications of import of saxitoxin of 5 milligrams or less for medical/diagnostic purposes must be submitted to BIS at least 3 days prior to import. Note 2 to Sec. 712.2(b): For specific provisions relating to the prior advance notification of exports of all Schedule 1 chemicals, see Sec. 745.1 of the Export Administration Regulations (EAR) (15 CFR parts 730 through 799). For specific provisions relating to license requirements for exports of Schedule 1 chemicals, see Sec. 742.2 and Sec. 742.18 of the EAR for Schedule 1 chemicals subject to the jurisdiction of the Department of Commerce and see the International Traffic in Arms Regulations (22 CFR parts 120 through 130) for Schedule 1 chemicals subject to the jurisdiction of the Department of State. (c)(1) The provisions of paragraphs (a) and (b) of this section do not apply to the retention, ownership, possession, transfer, or receipt of a Schedule 1 chemical by a department, agency, or other entity of the United States, or by a person described in paragraph (c)(2) of this section, pending destruction of the Schedule 1 chemical; (2) A person referred to in paragraph (c)(1) of this section is: (i) Any person, including a member of the Armed Forces of the United States, who is authorized by law or by an appropriate officer of the United States to retain, own, possess transfer, or receive the Schedule 1 chemical; or (ii) In an emergency situation, any otherwise non-culpable person if the person is attempting to seize or destroy the Schedule 1 chemical. Sec. 712.3 Initial declaration requirements for declared facilities which are engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC. Initial declarations submitted in February 2000 remain valid until amended or rescinded. If you plan to change/amend the technical description of your facility submitted with your initial declaration, you must submit an amended initial declaration to BIS 200 calendar days prior to implementing the change (see Sec. 712.5(b)(1)(ii) of the CWCR). Sec. 712.4 New Schedule 1 production facility. (a) Establishment of a new Schedule 1 production facility. (1) If your facility has never before been declared under Sec. 712.5 of the CWCR, or the initial declaration for your facility has been withdrawn pursuant to Sec. 712.5(g) of the CWCR, and you intend to begin production of Schedule 1 chemicals at your facility in quantities greater than 100 grams aggregate per year for research, medical, or pharmaceutical purposes, you must provide an initial declaration (with a current detailed technical description of your facility) to BIS in no less than 200 calendar days in advance of commencing such production. Such facilities are considered to be ``new Schedule 1 production facilities'' and are subject to an initial inspection within 200 calendar days of submitting an initial declaration. (2) New Schedule 1 production facilities that submit an initial declaration pursuant to paragraph (a)(1) of this section are considered approved Schedule 1 production facilities for purposes of the CWC, unless otherwise notified by BIS within 30 days of receipt by BIS of that initial declaration. (b) Types of declaration forms required. If your new Schedule 1 production facility will produce in excess of 100 grams aggregate of Schedule 1 chemicals, you must complete the Certification Form, Form 1- 1 and Form A. You must also provide a detailed technical description of the new facility or its relevant parts, and a detailed diagram of the declared areas in the facility. (c) Two hundred days after a new Schedule 1 production facility submits its initial declaration, it is subject to the declaration requirements in Sec. 712.5(a)(1) and (a)(2) and Sec. 712.5(b)(1)(ii) of the CWCR. Sec. 712.5 Annual declaration requirements for facilities engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC. (a) Declaration requirements--(1) Annual declaration on past activities. You must complete the forms specified in paragraph (b)(2) of this section if you produced at your facility in excess of 100 grams aggregate of Schedule 1 chemicals in the previous calendar year. As a declared Schedule 1 facility, in addition to declaring the production of each Schedule 1 chemical that [[Page 24937]] comprises your aggregate production of Schedule 1 chemicals, you must also declare any Schedule 1, Schedule 2, or Schedule 3 precursor used to produce the declared Schedule 1 chemical. You must further declare each Schedule 1 chemical used (consumed) and stored at your facility, and domestically transferred from your facility during the previous calendar year, whether or not you produced that Schedule 1 chemical at your facility. (2) Annual declaration on anticipated activities. You must complete the forms specified in paragraph (b)(3) of this section if you anticipate that you will produce at your facility more than 100 grams aggregate of Schedule 1 chemicals in the next calendar year. If you are not already a declared facility, you must complete an initial declaration (see Sec. 712.4 of the CWCR) 200 calendar days before commencing operations or increasing production which will result in production of more than 100 grams aggregate of Schedule 1 chemicals. (b) Declaration forms to be used--(1) Initial declaration. (i) You must have completed the Certification Form, Form 1-1 and Form A if you produced at your facility in excess of 100 grams aggregate of Schedule 1 chemicals in calendar years 1997, 1998, or 1999. You must have provided a detailed current technical description of your facility or its relevant parts including a narrative statement, and a detailed diagram of the declared areas in the facility. (ii) If you plan to change the technical description of your facility from your initial declaration completed and submitted pursuant to Sec. 712.3 or Sec. 712.4 of the CWCR, you must submit an amended initial declaration to BIS 200 calendar days prior to the change. Such amendments to your initial declaration must be made by completing a Certification Form, Form 1-1 and Form A, including the new description of the facility. See Sec. 712.7 of the CWCR for additional instructions on amending Schedule 1 declarations. (2) Annual declaration on past activities. If you are subject to the declaration requirement of paragraph (a)(1) of this section, you must complete the Certification Form and Forms 1-1, 1-2, 1-2A, 1-2B, and Form A if your facility was involved in the production of Schedule 1 chemicals in the previous calendar year. Form B is optional. (3) Annual declaration on anticipated activities. If you anticipate that you will produce at your facility in excess of 100 grams aggregate of Schedule 1 chemicals in the next calendar year you must complete the Certification Form and Forms 1-1, 1-4, and Form A. Form B is optional. (c) Quantities to be declared. If you produced in excess of 100 grams aggregate of Schedule 1 chemicals in the previous calendar year, you must declare the entire quantity of such production, rounded to the nearest gram. You must also declare the quantity of any Schedule 1, Schedule 2 or Schedule 3 precursor used to produce the declared Schedule 1 chemical, rounded to the nearest gram. You must further declare the quantity of each Schedule 1 chemical consumed or stored by, or domestically transferred from, your facility, whether or not the Schedule 1 chemical was produced by your facility, rounded to the nearest gram. In calculating the amount of Schedule 1 chemical you produced, consumed or stored, count only the amount of the Schedule 1 chemical(s) in a mixture, not the total weight of the mixture (i.e., do not count the weight of the solution, solvent, or container). (d) For the purpose of determining if a Schedule 1 chemical is subject to declaration, you must declare a Schedule 1 chemical that is an intermediate, but not a transient intermediate. (e) ``Declared'' Schedule 1 facilities and routine inspections. Only facilities that submitted a declaration pursuant to paragraph (a)(1) or (a)(2) of this section or Sec. 712.4 of the CWCR are considered ``declared'' Schedule 1 facilities. A ``declared'' Schedule 1 facility is subject to initial and routine inspection by the OPCW (see part 716 of the CWCR). (f) Approval of declared Schedule 1 production facilities. Facilities that submit declarations pursuant to this section are considered approved Schedule 1 production facilities for purposes of the CWC, unless otherwise notified by BIS within 30 days of receipt by BIS of an annual declaration on past activities or annual declaration on anticipated activities (see paragraphs (a)(1) and (a)(2) of this section). If your facility does not produce more than 100 grams aggregate of Schedule 1 chemicals, no approval by BIS is required. (g) Withdrawal of Schedule 1 initial declarations. A facility subject to Sec. Sec. 712.3, 712.4 and 712.5 of the CWCR may withdraw its initial declaration at any time by notifying BIS in writing. A notification requesting the withdrawal of the initial declaration should be sent on company letterhead to the address in Sec. 711.6 of the CWCR. BIS will acknowledge receipt of the withdrawal of the initial declaration. Facilities withdrawing their initial declaration may not produce subsequently in excess of 100 grams aggregate of Schedule 1 chemicals within a calendar year unless pursuant to Sec. 712.4. Sec. 712.6 Advance notification and annual report of all exports and imports of Schedule 1 chemicals to, or from, other States Parties. Pursuant to the Convention, the United States is required to notify the OPCW not less than 30 days in advance of every export or import of a Schedule 1 chemical, in any quantity, to or from another State Party. In addition, the United States is required to provide a report of all exports and imports of Schedule 1 chemicals to or from other States Parties during each calendar year. If you plan to export or import any quantity of a Schedule 1 chemical from or to your declared facility, undeclared facility or trading company, you must notify BIS in advance of the export or import and complete an annual report of exports and imports that actually occurred during the previous calendar year. The United States will transmit to the OPCW the advance notifications and a detailed annual declaration of each actual export or import of a Schedule 1 chemical from/to the United States. Note that the advance notification and annual report requirements of this section do not relieve you of any requirement to obtain a license for export of Schedule 1 chemicals subject to the EAR or ITAR or a license for import of Schedule 1 chemicals from the Department of Justice under the Alcohol, Tobacco, Firearms and Explosives Regulations in 27 CFR part 447. Only ``declared'' facilities, as defined in Sec. 712.5(e) of the CWCR, are subject to initial and routine inspections pursuant to part 716 of the CWCR. (a) Advance notification of exports and imports. You must notify BIS at least 45 calendar days prior to exporting or importing any quantity of a Schedule 1 chemical, except for exports or imports of 5 milligrams or less of Saxitoxin--B (7)--for medical/diagnostic purposes, listed in Supplement No. 1 to this part to or from another State Party. Advance notification of export or import of 5 milligrams or less of Saxitoxin for medical/diagnostic purposes only, must be submitted to BIS at least 3 calendar days prior to export or import. Note that advance notifications for exports may be sent to BIS prior to or after submission of a license application to BIS for Schedule 1 chemicals subject to the EAR and controlled under ECCN 1C351 or to the Department of State for Schedule 1 chemicals controlled under the ITAR. Such advance notifications must be submitted separately from license applications. [[Page 24938]] (1) Advance notifications should be on company letterhead or must clearly identify the reporting entity by name of company, complete address, name of contact person and telephone and facsimile numbers, along with the following information: (i) Chemical name; (ii) Structural formula of the chemical; (iii) Chemical Abstract Service (CAS) Registry Number; (iv) Quantity involved in grams; (v) Planned date of export or import; (vi) Purpose (end-use) of export or import (i.e., research, medical, pharmaceutical, or protective purposes); (vii) Name(s) of exporter and importer; (viii) Complete street address(es) of exporter and importer; (ix) U.S. export license or control number, if known; and (x) Company identification number, once assigned by BIS. (2) Send the advance notification by facsimile to (703) 235-1481 or to the following address for mail and courier deliveries: Treaty Compliance Division, Bureau of Industry and Security, Department of Commerce, 1555 Wilson Boulevard, Suite 700, Arlington, VA 22209-2405, Attn: ``Advance Notification of Schedule 1 Chemical [Export] [Import].'' (3) Upon receipt of the advance notification, BIS will inform the exporter or importer of the earliest date after which the shipment may occur under the advance notification procedure. To export a Schedule 1 chemical subject to an export license requirement either under the EAR or the ITAR, the exporter must have applied for and been granted a license (see Sec. 742.2 and Sec. 742.18 of the EAR, or the ITAR at 22 CFR parts 120 through 130). (b) Annual report requirements for exports and imports of Schedule 1 chemicals. Any person subject to the CWCR that exported or imported any quantity of Schedule 1 chemical to or from another State Party during the previous calendar year has a reporting requirement under this section. (1) Annual report on exports and imports. Declared and undeclared facilities, trading companies, and any other person subject to the CWCR that exported or imported any quantity of a Schedule 1 chemical to or from another State Party in a previous calendar year must submit an annual report on exports and imports. (2) Report forms to submit.--(i) Declared Schedule 1 facilities. (A) If your facility declared production of a Schedule 1 chemical and you also exported or imported any amount of that same Schedule 1 chemical, you must report the export or import by submitting either: (1) Combined declaration and report. Submit, along with your declaration, Form 1-3 for that same Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional; or (2) Report. Submit, separately from your declaration, a Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional. (B) If your facility declared production of a Schedule 1 chemical and exported or imported any amount of a different Schedule 1 chemical, you must report the export or import by submitting either: (1) Combined declaration and report. Submit, along with your declaration, a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional; or (2) Report. Submit, separately from your declaration, a Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional. (ii) If you are an undeclared facility, trading company, or any other person subject to the CWCR, and you exported or imported any amount of a Schedule 1 chemical, you must report the export or import by submitting a Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional. (c) Paragraph (a) of this section does not apply to the activities and persons set forth in Sec. 712.2(b) of the CWCR. Sec. 712.7 Amended declaration or report. In order for BIS to maintain accurate information on previously submitted facility declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or report requirements, amended declarations or reports will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities and annual reports on exports and imports submitted for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report. (a) Changes to information that directly affect inspection of a declared facility's Annual Declaration of Past Activities (ADPA) or Annual Declaration on Anticipated Activities (ADAA). You must submit an amended declaration or report to BIS within 15 days of any change in the following information: (1) Types of Schedule 1 chemicals produced (e.g., additional Schedule 1 chemicals); (2) Quantities of Schedule 1 chemicals produced; (3) Activities involving Schedule 1 chemicals; and (4) End-use of Schedule 1 chemicals (e.g., additional end-use(s)). (b) Changes to export or import information submitted in Annual Reports on Exports and Imports from undeclared facilities, trading companies and U.S. persons. You must submit an amended report or amended combined declaration and report for changes to export or import information within 15 days of any change in the following export or import information: (1) Types of Schedule 1 chemicals exported or imported (e.g., additional Schedule 1 chemicals); (2) Quantities of Schedule 1 chemicals exported or imported; (3) Destination(s) of Schedule 1 chemicals exported; (4) Source(s) of Schedule 1 chemicals imported; (5) Activities involving exports and imports of Schedule 1 chemicals; and (6) End-use(s) of Schedule 1 chemicals exported or imported (e.g., additional end-use(s)). (c) Changes to company and facility information previously submitted to BIS in the ADPA, the ADAA, and the Annual Report on Exports and Imports.--(1) Internal company changes. You must submit an amended declaration or report to BIS within 30 days of any change in the following information: (i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address; (ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number(s), and facsimile number(s); (iii) Company name (see Sec. 712.7(c)(2) of the CWCR for other company changes); (iv) Company mailing address; (v) Facility name; (vi) Facility owner, including telephone number, and facsimile number; and (vii) Facility operator, including telephone number, and facsimile number. (2) Change in ownership of company or facility. If you sold or purchased a declared facility or trading company, you must submit an amended declaration or report to BIS, either before the effective date of the change or [[Page 24939]] within 30 days after the effective date of the change. The amended declaration or report must include the following information: (i) Information that must be submitted to BIS by the company selling a declared facility: (A) Name of seller (i.e., name of the company selling a declared facility); (B) Name of the declared facility and U.S. Code Number for that facility; (C) Name of purchaser (i.e., name of the new company purchasing a declared facility) and identity of contact person for the purchaser, if known; (D) Date of ownership transfer or change; (E) Additional details on sale of the declared facility relevant to ownership or operational control over any portion of that facility (e.g., whether the entire facility or only a portion of the declared facility has been sold to a new owner); and (F) Details regarding whether the new owner will submit the next declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the facility or trading company. (1) If the new owner is responsible for submitting the declaration or report for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the facility. (2) If the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the facility (``part-year declarations''), and if, at the time of transfer of ownership, the previous owner's activities are not above the declaration thresholds set forth in Sec. Sec. 712.4 and 712.5 of the CWCR, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated. (3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in Sec. Sec. 712.4 and 712.5 of the CWCR, BIS will return the declarations without action as set forth in Sec. 712.8 of the CWCR. (4) If part-year reports are submitted by the previous owner and the new owner as required in Sec. 712.5 of the CWCR, BIS will submit both reports in the OPCW. (ii) Information that must be submitted to BIS by the company purchasing a declared facility: (A) Name of purchaser (i.e., name of company purchasing a declared facility; (B) Mailing address of purchaser; (C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address; (D) Name of inspection points of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s) and e-mail address(es); (E) Name of the declared facility and U.S. Code Number for that facility; (F) Location of the declared facility; (G) Owner and operator of the declared facility, including telephone number, and facsimile number; and (H) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the facility or trading company. (1) If the new owner is taking responsibility for submitting the declaration or report for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the facility. (2) If the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the facility, and, at the time of transfer of ownership, the previous owner's activities are not above the declaration thresholds set forth in Sec. Sec. 712.4 and 712.5 of the CWCR, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated. (3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in Sec. Sec. 712.4 and 712.5 of the CWCR, BIS will return the declarations without action as set forth in Sec. 712.8 of the CWCR. (4) If part-year reports are submitted by the previous owner and the new owner as required in Sec. 712.5 of the CWCR, BIS will submit both reports to the OPCW. Note 1 to Sec. 712.7(c): You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company. Note 2 to Sec. 712.7(c): You may notify BIS of change in ownership via a letter to the address given in Sec. 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared facility or trading company. Note 3 to Sec. 712.7(c): For ownership changes, the declared facility or trading company will maintain its original U.S. Code Number, unless the facility or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers for the new facilities. (d) Inspection-related amendments. If, following completion of an inspection (see parts 716 and 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information that will be required pursuant to Sec. Sec. 716.10 and 717.5 of the CWCR. You must submit an amended declaration to BIS no later than 45 days following your receipt of the BIS post-inspection letter. (e) Non-substantive changes. If, subsequent to the submission of your declaration or report to BIS, you discover one or more non- substantive typographical errors in your declaration or report, you are not required to submit an amended declaration or report to BIS. Instead, you may correct these errors in a subsequent declaration or report. (f) Documentation required for amended declarations or reports. If you are required to submit an amended declaration or report to BIS pursuant to paragraph (a), (b), (c), or (d) of this section, you must submit either: (1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or (2) Both of the following: (i) A new Certification Form (i.e., Form 1-1); and (ii) The specific forms (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the provisions of this part 712, to amend your declaration or report. Sec. 712.8 Declarations and reports returned without action by BIS. If you submit a declaration or report and BIS determines that the information contained therein is not required by the [[Page 24940]] CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action (RWA). However, BIS will maintain a copy of the RWA letter. Sec. 712.9 Deadlines for submission of Schedule 1 declarations, reports, advance notifications, and amendments. Declarations, reports, advance notifications, and amendments required under this part must be postmarked by the appropriate date identified in Supplement No. 2 to this part 712. Required declarations, reports, advance notifications, and amendments include: (a) Annual declaration on past activities (Schedule 1 chemical production during the previous calendar year); (b) Annual report on exports and imports of Schedule 1 chemicals from facilities, trading companies, and other persons (during the previous calendar year); (c) Combined declaration and report (production of Schedule 1 chemicals, as well as exports or imports of the same or different Schedule 1 chemicals, by a declared facility during the previous calendar year); (d) Annual declaration on anticipated activities (anticipated production of Schedule 1 chemicals in the next calendar year); (e) Advance notification of any export to or import from another State Party; (f) Initial declaration of a new Schedule 1 chemical production facility; and (g) Amended declaration or report, including combined declaration and report. Supplement No. 1 to Part 712.--Schedule 1 Chemicals ------------------------------------------------------------------------ (CAS registry number) ------------------------------------------------------------------------ A. Toxic chemicals: (1) O-Alkyl (<=C10, incl. cycloalkyl) alkyl (Me, Et, n-Pr or i-Pr)-phosphonofluoridates e.g. Sarin: O-Isopropyl (107-44-8) methylphosphonofluoridate..................... Soman: O-Pinacolyl methylphosphonofluoridate... (96-64-0) (2) O-Alkyl (<=C10, incl. cycloalkyl) N,N-dialkyl (77-81-6) (Me, Et, n-Pr or i-Pr) phosphoramidocyanidates e.g. Tabun: O-Ethyl N,N-dimethyl phosphoramidocyanidate............................ (3) O-Alkyl (H or <=C10, incl. cycloalkyl) S-2- (50782-69-9) dialkyl (Me, Et, n-Pr or i-Pr)-aminoethyl alkyl (Me, Et, n-Pr or i-Pr) phosphonothiolates and corresponding alkylated or protonated salts e.g. VX: O-Ethyl S-2-diisopropylaminoethyl methyl phosphonothiolate................................. (4) Sulfur mustards: 2-Chloroethylchloromethylsulfide............... (2625-76-5) Mustard gas: Bis(2-chloroethyl)sulfide......... (505-60-2) Bis(2-chloroethylthio)methane.................. (63869-13-6) Sesquimustard: 1,2-Bis(2-chloroethylthio)ethane (3563-36-8) 1,3-Bis(2-chloroethylthio)-n-propane........... (63905-10-2) 1,4-Bis(2-chloroethylthio)-n-butane............ (142868-93-7) 1,5-Bis(2-chloroethylthio)-n-pentane........... (142868-94-8) Bis(2-chloroethylthiomethyl)ether.............. (63918-90-1) O-Mustard: Bis(2-chloroethylthioethyl)ether.... (63918-89-8) (5) Lewisites: Lewisite 1: 2-Chlorovinyldichloroarsine........ (541-25-3) Lewisite 2: Bis(2-chlorovinyl)chloroarsine..... (40334-69-8) Lewisite 3: Tris(2-chlorovinyl)arsine.......... (40334-70-1) (6) Nitrogen mustards: HN1: Bis(2-chloroethyl)ethylamine.............. (538-07-8) HN2: Bis(2-chloroethyl)methylamine............. (51-75-2) HN3: Tris(2-chloroethyl)amine.................. (555-77-1) (7) Saxitoxin...................................... (35523-89-8) (8) Ricin.......................................... (9009-86-3) B. Precursors: (9) Alkyl (Me, Et, n-Pr or i-Pr) (676-99-3) phosphonyldifluorides e.g. DF: Methylphosphonyldifluoride........................ (10) O-Alkyl (H or <=C10, incl. cycloalkyl) O-2- (57856-11-8) dialkyl (Me, Et, n-Pr or i-Pr)-aminoethyl alkyl (Me, Et, N-Pr or i-Pr) phosphonites and corresponding alkylated or protonated salts e.g. QL: O-Ethyl O-2-diisopropylaminoethyl methylphosphonite................................. (11) Chlorosarin: O-Isopropyl (1445-76-7) methylphosphonochloridate......................... (12) Chlorosoman: O-Pinacolyl (7040-57-5) methylphosphonochloridate......................... ------------------------------------------------------------------------ Notes to Supplement No. 1 Note 1: Note that the following Schedule 1 chemicals are controlled for export purposes under the Export Administration Regulations (see part 774 of the EAR, the Commerce Control List): Saxitoxin (35523-89-8) and Ricin (9009-86-3). Note 2: All Schedule 1 chemicals not listed in Note 1 to this Supplement are controlled for export purposes by the Directorate of Defense Trade Controls of the Department of State under the International Traffic in Arms Regulations (22 CFR parts 120 through 130). Supplement No. 2 to Part 712.--Deadlines for Submission of Schedule 1 Declarations, Advance Notifications, Reports, and Amendments ------------------------------------------------------------------------ Declarations, advance notifications and reports Applicable forms Due dates ------------------------------------------------------------------------ Annual Declaration on Past Certification, 1-1, February 28th of the Activities (previous 1-2,1-2A,1-2B, A year following any calendar year)--Declared (as appropriate), B calendar year in facility (past production). (optional). which more than 100 grams aggregate of Schedule 1 chemicals were produced, [[Page 24941]] Annual report on exports and Certification, 1-1,1- February 28th of the imports (previous calendar 3, A (as year following any year) (facility, trading appropriate), B calendar year in company, other persons). (optional). which Schedule 1 chemicals were exported or imported. Combined Declaration and Certification, 1-1, February 28th of the Report. 1-2, 1-2A, 1-2B, 1- year following any 3, A (as calendar year in appropriate), B which Schedule 1 (optional). chemicals were produced, exported, or imported. Annual Declaration of Certification, 1-1, September 3rd of the Anticipated Activities 1-4, A (as year prior to any (next calendar year). appropriate), B calendar year in (optional). which Schedule 1 activities are anticipated to occur. Advance Notification of any Notify on 45 calendar days export to or import from letterhead. See prior to any export another State Party. Sec. 712.6 of the or import of CWCR. Schedule 1 chemicals, except 3 days prior to export or import of 5 milligrams or less of saxitoxin for medical/ diagnositc purposes. Initial Declaration of a new Certification, 1-1, 200 calendar days Schedule 1 facility A (as appropriate), prior to producing (technical description). B (optional). in excess of 100 grams aggregate of Schedule 1 chemicals. Amended Declaration......... Certification, 1-1, 1-2, 1-2A. --Chemicals/Activities: .................... --15 calendar days Sec. 712.7(a). after change in information. --Company information: .................... --30 calendar days Sec. 712.7(c). after change in information. --Post-inspection .................... --45 calendar days letter: Sec. 712.7(d). after receipt of letter. Amended Report Sec. Certification, 1-1, --15 calendar days 712.7(b). 1-3, A (as after change in appropriate), B information. (optional). Amended Combined Declaration Certification, 1-1, --15 calendar days & Report. 1-2, 1-2A, 1-3, A after change in (as appropriate), B information. (optional). ------------------------------------------------------------------------ PART 713--ACTIVITIES INVOLVING SCHEDULE 2 CHEMICALS Sec. 713.1 Prohibition on exports and imports of Schedule 2 chemicals to and from States not Party to the CWC. 713.2 Annual declaration requirements for plant sites that produce, process or consume Schedule 2 chemicals in excess of specified thresholds. 713.3 Annual declaration and reporting requirements for exports and imports of Schedule 2 chemicals. 713.4 Advance declaration requirements for additionally planned production, processing or consumption of Schedule 2 chemicals. 713.5 Amended declaration or report. 713.6 Declarations and reports returned without action by BIS. 713.7 Deadlines for submission of Schedule 2 declarations, reports, and amendments. Supplement No. 1 to Part 713--Schedule 2 Chemicals Supplement No. 2 to Part 713--Deadlines for Submission of Schedule 2 Declarations, Reports, and Amendments Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 U.S.C. 1701 et seq; E.O. 12938 59 FR 59099, 3 CFR, 1994 Comp., p. 950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p. 200; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 713.1 Prohibition on exports and imports of Schedule 2 chemicals to and from States not Party to the CWC. (a) You may not export any Schedule 2 chemical (see Supplement No. 1 to this part) to any destination or import any Schedule 2 chemical from any destination other than a State Party to the Convention. See Supplement No. 1 to part 710 of the CWCR for a list of States that are party to the Convention. Note to Sec. 713.1(a): See Sec. 742.18 of the Export Administration Regulations (EAR) (15 CFR part 742) for prohibitions that apply to exports of Schedule 2 chemicals to States not Party to the CWC. (b) Paragraph (a) of this section does not apply to: (1) The export or import of a Schedule 2 chemical to or from a State not Party to the CWC by a department, agency, or other entity of the United States, or by any person, including a member of the Armed Forces of the United States, who is authorized by law, or by an appropriate officer of the United States to transfer or receive the Schedule 2 chemical; (2) Mixtures containing Schedule 2A chemicals, if the concentration of each Schedule 2A chemical in the mixture is 1% or less by weight (note, however, that such mixtures may be subject to the regulatory requirements of other federal agencies); (3) Mixtures containing Schedule 2B chemicals if the concentration of each Schedule 2B chemical in the mixture is 10% or less by weight (note, however, that such mixtures may be subject to the regulatory requirements of other federal agencies); or (4) Products identified as consumer goods packaged for retail sale for personal use or packaged for individual use. Sec. 713.2 Annual declaration requirements for plant sites that produce, process or consume Schedule 2 chemicals in excess of specified thresholds. (a) Declaration of production, processing or consumption of Schedule 2 chemicals for purposes not prohibited by the CWC--(1) Quantities of production, processing or consumption that trigger declaration requirements. You must complete the forms specified in paragraph (b) of this section if you have been or will be involved in the following activities: (i) Annual declaration on past activities. (A) You produced, processed or consumed at one or more plants on your plant site during any of the previous three calendar years, a Schedule 2 chemical in excess of any of the following declaration threshold quantities: (1) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (see Schedule 2, paragraph A.3 in Supplement No. 1 to this part); (2) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro- 2(trifluoromethyl)-1-propene or 100 kilograms of chemical Amiton: 0,0- Diethyl S-[2-(diethylamino) [[Page 24942]] ethyl] phosphorothiolate and corresponding alkylated or protonated salts (see Schedule 2, paragraphs A.1 and A.2 in Supplement No. 1 to this part); or (3) 1 metric ton of any chemical listed in Schedule 2, Part B (see Supplement No. 1 to this part). (B) In order to trigger a declaration requirement for a past activity (i.e., production, processing or consumption) involving a Schedule 2 chemical, a plant on your plant site must have exceeded the applicable declaration threshold for that particular activity during one or more of the previous three calendar years. For example, if a plant on your plant site produced 800 kilograms of thiodiglycol and consumed 300 kilograms of the same Schedule 2 chemical, during the previous calendar year, you would not have a declaration requirement based on these activities, because neither activity at your plant would have exceeded the declaration threshold of 1 metric ton for that Schedule 2 chemical. However, a declaration requirement would apply if an activity involving a Schedule 2 chemical at the plant exceeded the declaration threshold in an earlier year (i.e., during the course of any other calendar year within the past three calendar years), as indicated in the example provided in the note to this paragraph. Note to Sec. 713.2(a)(1)(i)(B): To determine whether or not you have an annual declaration on past activities requirement for Schedule 2 chemicals, you must determine whether you produced, processed or consumed a Schedule 2 chemical above the applicable threshold at one or more plants on your plant site in any one of the three previous calendar years. For example, for the 2004 annual declaration on past activities period, if you determine that one plant on your plant site produced greater than 1 kilogram of the chemical BZ in calendar year 2002, and no plants on your plant site produced, processed or consumed any Schedule 2 chemical above the applicable threshold in calendar years 2003 or 2004, you still have a declaration requirement under this paragraph for the previous calendar year (2004). However, you must only declare on Form 2-3 (question 2-3.1), production data for calendar year 2004. You would declare ``0'' production because you did not produce BZ above the applicable threshold in calendar year 2004. Since the plant site did not engage in any other declarable activity (i.e., consumption, processing) in the 2002-2004 declaration period, you would leave blank questions 2-3.2 and 2-3.3 on Form 2-3. Note that declaring a ``0'' production quantity for 2004, as opposed to leaving the question blank, permits BIS to distinguish the activity that triggered the declaration requirement from activities that were not declarable during that period. (ii) Annual declaration on anticipated activities. You anticipate that you will produce, process or consume at one or more plants on your plant site during the next calendar year, a Schedule 2 chemical in excess of the applicable declaration threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section. Note to Sec. 713.2(a)(1)(ii): A null ``0'' declaration is not required if you do not plan to produce, process or consume a Schedule 2 chemical in the next calendar year. (2) Schedule 2 chemical production. (i) For the purpose of determining Schedule 2 production, you must include all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared. (ii) For the purpose of determining if a Schedule 2 chemical is subject to declaration, you must declare an intermediate Schedule 2 chemical, but not a transient intermediate Schedule 2 chemical. (3) Mixtures containing a Schedule 2 chemical. (i) Mixtures that must be counted. You must count the quantity of each Schedule 2 chemical in a mixture, when determining the total quantity of a Schedule 2 chemical produced, processed, or consumed at a plant on your plant site, if the concentration of each Schedule 2 chemical in the mixture is 30% or more by volume or by weight, whichever yields the lesser percent. Do not count a Schedule 2 chemical in the mixture that represents less than 30% by volume or by weight. (ii) How to count the quantity of each Schedule 2 chemical in a mixture. If your mixture contains 30% or more concentration of a Schedule 2 chemical, you must count the quantity (weight) of each Schedule 2 chemical in the mixture, not the total weight of the mixture. You must separately declare each Schedule 2 chemical with a concentration in the mixture that is 30% or more and exceeds the quantity threshold detailed in paragraphs (a)(1)(i)(A)(1) through (3) of this section. (iii) Determining declaration requirements for production, processing and consumption. If the total quantity of a Schedule 2 chemical produced, processed or consumed at a plant on your plant site, including mixtures that contain 30% or more concentration of a Schedule 2 chemical, exceeds the applicable declaration threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section, you have a declaration requirement. For example, if during calendar year 2001, a plant on your plant site produced a mixture containing 300 kilograms of thiodiglycol in a concentration of 32% and also produced 800 kilograms of thiodiglycol, the total amount of thiodiglycol produced at that plant for CWCR purposes would be 1100 kilograms, which exceeds the declaration threshold of 1 metric ton for that Schedule 2 chemical. You must declare past production of thiodiglycol at that plant site for calendar year 2001. If, on the other hand, a plant on your plant site processed a mixture containing 300 kilograms of thiodiglycol in a concentration of 25% and also processed 800 kilograms of thiodiglycol in other than mixture form, the total amount of thiodiglycol processed at that plant for CWCR purposes would be 800 kilograms and would not trigger a declaration requirement. This is because the concentration of thiodiglycol in the mixture is less than 30% and therefore did not have to be ``counted'' and added to the other 800 kilograms of processed thiodiglycol at that plant. (b) Types of declaration forms to be used--(1) Annual declaration on past activities. You must complete the Certification Form and Forms 2-1, 2-2, 2-3, 2-3A, and Form A if one or more plants on your plant site produced, processed or consumed more than the applicable threshold quantity of a Schedule 2 chemical described in paragraphs (a)(1)(i)(A)(1) through (3) of this section in any of the three previous calendar years. Form B is optional. If you are subject to annual declaration requirements, you must include data for the previous calendar year only. (2) Annual declaration on anticipated activities. You must complete the Certification Form and Forms 2-1, 2-2, 2-3, 2-3A, 2-3C, and Form A if you plan to produce, process, or consume at any plant on your plant site a Schedule 2 chemical above the applicable threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section during the following calendar year. Form B is optional. (c) Quantities to be declared--(1) Production, processing and consumption of a Schedule 2 chemical above the declaration threshold-- (i) Annual declaration on past activities. If you are required to complete forms pursuant to paragraph (a)(1)(i) of this section, you must declare the aggregate quantity resulting from each type of activity (production, processing or consumption) from each plant on your plant site that exceeds the applicable [[Page 24943]] threshold for that Schedule 2 chemical. Do not include in these aggregate production, processing, and consumption quantities any data from plants on the plant site that did not individually produce, process or consume a Schedule 2 chemical in amounts greater than the applicable threshold. For example, if a plant on your plant site produced a Schedule 2 chemical in an amount greater than the applicable declaration threshold during the previous calendar year, you would have to declare only the production quantity from that plant, provided that the total amount of the Schedule 2 chemical processed or consumed at the plant did not exceed the applicable declaration threshold during any one of the previous three calendar years. If in the previous calendar year your production, processing and consumption activities all were below the applicable declaration threshold, but your declaration requirement is triggered because of production activities occurring in an earlier year, you would declare ``0'' only for the declared production activities. (ii) Annual declaration on anticipated activities. If you are required to complete forms pursuant to paragraph (a)(1)(ii) of this section, you must declare the aggregate quantity of any Schedule 2 chemical that you plan to produce, process or consume at any plant(s) on your plant site above the applicable thresholds set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section during the next calendar year. Do not include in these anticipated aggregate production, processing, and consumption quantities any data from plants on the plant site that you do not anticipate will individually produce, process or consume a Schedule 2 chemical in amounts greater than the applicable thresholds. (2) Rounding. For the chemical BZ, report quantities to the nearest hundredth of a kilogram (10 grams). For PFIB and the Amiton family, report quantities to the nearest 1 kilogram. For all other Schedule 2 chemicals, report quantities to the nearest 10 kilograms. (d) ``Declared'' Schedule 2 plant site. A plant site that submitted a declaration pursuant to paragraph (a)(1) of this section is a ``declared'' plant site. (e) Declared Schedule 2 plant sites subject to initial and routine inspections. A ``declared'' Schedule 2 plant site is subject to initial and routine inspection by the Organization for the Prohibition of Chemical Weapons if it produced, processed or consumed in any of the three previous calendar years, or is anticipated to produce, process or consume in the next calendar year, in excess of ten times the applicable declaration threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section (see part 716 of the CWCR). A ``declared'' Schedule 2 plant site that has received an initial inspection is subject to routine inspection. Sec. 713.3 Annual declaration and reporting requirements for exports and imports of Schedule 2 chemicals. (a) Declarations and reports of exports and imports of Schedule 2 chemicals--(1) Declarations. A Schedule 2 plant site that is declared because it produced, processed or consumed a Schedule 2 chemical at one or more plants above the applicable threshold set forth in paragraph (b) of this section, and also exported from or imported to the plant site that same Schedule 2 chemical above the applicable threshold, must submit export and import information as part of its declaration. (2) Reports. The following persons must submit a report if they individually exported or imported a Schedule 2 chemical above the applicable threshold indicated in paragraph (b) of this section: (i) A declared plant site that exported or imported a Schedule 2 chemical that was different than the Schedule 2 chemical produced, processed or consumed at one or more plants at the plant site above the applicable declaration threshold; (ii) An undeclared plant site; (iii) A trading company; or (iv) Any other person subject to the CWCR. Note to Sec. 713.3(a)(1) and (a)(2)(i): A declared Schedule 2 plant site may need to declare exports or imports of Schedule 2 chemicals that it produced, processed or consumed above the applicable threshold and also report exports or imports of different Schedule 2 chemicals that it did not produce, process or consume above the applicable threshold quantities. The report may be submitted to BIS either with or separately from the annual declaration on past activities (see Sec. 713.3(d) of the CWCR). Note to Sec. 713.3(a)(2): The U.S. Government will not submit to the OPCW company-specific information relating to the export or import of Schedule 2 chemicals contained in reports . The U.S. Government will add all export and import information contained in reports to export and import information contained in declarations to establish the U.S. national aggregate declaration on exports and imports. Note to Sec. 713.3(a)(1) and (2): Declared and undeclared plant sites must count, for declaration or reporting purposes, all exports from and imports to the entire plant site, not only from or to individual plants on the plant site. (b) Quantities of exports or imports that trigger a declaration or reporting requirement. (1) You have a declaration or reporting requirement and must complete the forms specified in paragraph (d) of this section if you exported or imported a Schedule 2 chemical in excess of the following threshold quantities: (i) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (See Schedule 2, paragraph A.3 included in Supplement No. 1 to this part); (ii) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro- 2(trifluoromethyl)-1-propene or 100 kilograms of Amiton: O,O Diethyl S- [2(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (see Schedule 2, paragraphs A.1 and A.2 included in Supplement No.1 to this part); or (iii) 1 metric ton of any chemical listed in Schedule 2, Part B (see Supplement No.1 to this part). (2) Mixtures containing a Schedule 2 chemical. The quantity of each Schedule 2 chemical contained in a mixture must be counted for the declaration or reporting of an export or import only if the concentration of each Schedule 2 chemical in the mixture is 30% or more by volume or by weight, whichever yields the lesser percent. You must declare separately each Schedule 2 chemical whose concentration in the mixture is 30% or more. Note 1 to Sec. 713.3(b)(2): See Sec. 713.2(a)(2)(ii) of the CWCR for information on counting amounts of Schedule 2 chemicals contained in mixtures and determining declaration and reporting requirements. Note 2 to Sec. 713.3(b)(2): The ``30% and above'' mixtures rule applies only for declaration and reporting purposes. This rule does not apply for purposes of determining whether the export of your mixture to a non-State Party requires an End-Use Certificate or for determining whether you need an export license from BIS (see Sec. 742.2, Sec. 742.18 and Sec. 745.2 of the Export Administration Regulations) or from the Department of State (see the International Traffic in Arms Regulations (22 CFR parts 120 through130)). (c) Declaration and reporting requirements--(1) Annual declaration on past activities. A plant site described in paragraph (a)(1) of this section that has an annual declaration requirement for the production, processing, or consumption of a Schedule 2 chemical for the previous calendar year also must declare the export and/or import of that same Schedule 2 chemical if the amount exceeded the applicable threshold set forth in paragraph (b) of this section. The plant site must declare such export or import information as part of its annual declaration of past activities. [[Page 24944]] (2) Annual report on exports and imports. Declared plant sites described in paragraph (a)(2)(i) of this section, and undeclared plant sites, trading companies or any other person (described in paragraphs (a)(2)(ii) through (iv) of this section) subject to the CWCR that exported or imported a Schedule 2 chemical in a previous calendar year in excess of the applicable thresholds set forth in paragraph (b) of this section must submit an annual report on such exports or imports. (d) Types of declaration and reporting forms to be used--(1) Annual declaration on past activities. If you are a declared Schedule 2 plant site, as described in paragraph (a)(1) of this section, you must complete Form 2-3B, in addition to the forms required by Sec. 713.2(b)(1) of the CWCR, for each declared Schedule 2 chemical exported or imported above the applicable threshold in the previous calendar year. (2) Annual report on exports and imports. (i) If you are a declared plant site, as described in paragraph (a)(2)(i) of this section, you may fulfill your annual reporting requirements by: (A) Submitting, with your annual declaration on past activities, a Form 2-3B for each Schedule 2 chemical you exported or imported above the applicable threshold. Attach Form A, as appropriate; Form B is optional; or (B) Submitting, separately from your annual declaration on past activities, a Certification Form, Form 2-1, and Form 2-3B for each Schedule 2 chemical you exported or imported above the applicable threshold. Attach Form A, as appropriate; Form B is optional. (ii) If you are an undeclared plant site, trading company or any other person subject to the CWCR, you must complete the Certification Form, Form 2-1, and Form 2-3B for each Schedule 2 chemical you exported or imported above the applicable threshold. Attach Form A, as appropriate; Form B is optional. (e) Quantities to be declared--(1) Calculations. If you exported from or imported to your plant site, trading company, or other location more than the applicable threshold of a Schedule 2 chemical in the previous calendar year, you must declare or report all exports and imports of that chemical by country of destination or country of origin, respectively, and indicate the total amount exported to or imported from each country. (2) Rounding. For purposes of declaring or reporting exports and imports of a Schedule 2 chemical, you must total all exports and imports per calendar year per recipient or source and then round as follows: For the chemical BZ, the total quantity for each country of destination or country of origin (source) should be reported to the nearest hundredth of a kilogram (10 grams); for PFIB and Amiton and corresponding alkylated or protonated salts, the quantity for each destination or source should be reported to the nearest 1 kilogram; and for all other Schedule 2 chemicals, the total quantity for each destination or source should be reported to the nearest 10 kilograms. Sec. 713.4 Advance declaration requirements for additionally planned production, processing, or consumption of Schedule 2 chemicals. (a) Declaration requirements for additionally planned activities. (1) You must declare additionally planned production, processing, or consumption of Schedule 2 chemicals after the annual declaration on anticipated activities for the next calendar year has been delivered to BIS if: (i) You plan that a previously undeclared plant on your plant site under Sec. 713.2(a)(1)(ii) of the CWCR will produce, process, or consume a Schedule 2 chemical above the applicable declaration threshold; (ii) You plan to produce, process, or consume at a plant declared under Sec. 713.2(a)(1)(ii) of the CWCR an additional Schedule 2 chemical above the applicable declaration threshold; (iii) You plan an additional activity (production, processing, or consumption) at your declared plant above the applicable declaration threshold for a chemical declared under Sec. 713.2(a)(1)(ii) of the CWCR; (iv) You plan to increase the production, processing, or consumption of a Schedule 2 chemical by a plant declared under Sec. 713.2(a)(1)(ii) of the CWCR from the amount exceeding the applicable declaration threshold to an amount exceeding the applicable inspection threshold (see Sec. 716.1(b)(2) of the CWCR); (v) You plan to change the starting or ending date of anticipated production, processing, or consumption declared under Sec. 713.2(a)(1)(ii) of the CWCR by more than three months; or (vi) You plan to increase your production, processing, or consumption of a Schedule 2 chemical by a declared plant site by 20 percent or more above that declared under Sec. 713.2(a)(1)(ii) of the CWCR. (2) If you must submit a declaration on additionally planned activities because you plan to engage in any of the activities listed in paragraphs (a)(1)(i) through (vi) of this section, you also should declare changes to your declaration relating to the following activities. You do not have to submit an additionally planned declaration if you are only changing the following non-quantitative activities: (i) Changes to the plant's production capacity; (ii) Changes or additions to the product group codes for the plant site or the plant(s); (iii) Changes to the plant's activity status (i.e., dedicated, multipurpose, or other status); (iv) Changes to the plant's multipurpose activities; (v) Changes to the plant site's status relating to domestic transfer of the chemical; (vi) Changes to the plant site's purposes for which the chemical will be produced, processed or consumed; or (vii) Changes to the plant site's status relating to exports of the chemical or the addition of new countries for export. (b) Declaration forms to be used. If you are required to declare additionally planned activities pursuant to paragraph (a) of this section, you must complete the Certification Form and Forms 2-1, 2-2, 2-3, and 2-3C as appropriate. Such forms are due to BIS at least 15 days prior to beginning the additional activity. Sec. 713.5 Amended declaration or report. In order for BIS to maintain accurate information on previously submitted plant site declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or reporting requirements, amended declarations or reports will be required under the circumstances described in this section. This section applies only to annual declarations on past activities submitted for the three previous calendar years, annual reports on exports and imports for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report. (a) Changes to information that directly affect inspection of a declared plant site's Annual Declaration of Past Activities (ADPA) or Combined Annual Declaration and Report. You must submit an amended declaration or report to BIS within 15 days of any change in the following information: (1) Types of Schedule 2 chemicals produced, processed, or consumed; (2) Quantities of Schedule 2 chemicals produced, processed, or consumed; (3) Activities involving Schedule 2 chemicals (production, processing, consumption); (4) End-use of Schedule 2 chemicals (e.g., additional end-use(s)); [[Page 24945]] (5) Product group codes for Schedule 2 chemicals produced, processed, or consumed; (6) Production capacity for manufacturing a specific Schedule 2 chemical at particular plant site; (7) Exports or imports (e.g., changes in the types of Schedule 2 chemicals exported or imported or in the quantity, recipients, or sources of such chemicals); (8) Domestic transfers (e.g., changes in the types of Schedule 2 chemicals, types of destinations, or product group codes); and (9) Addition of new plant(s) for the production, processing, or consumption of Schedule 2 chemicals. (b) Changes to export or import information submitted in Annual Reports on Exports and Imports from undeclared plant sites, trading companies and U.S. persons. You must submit an amended report or amended combined declaration and report to BIS within 15 days of any change in the following export or import information: (1) Types of Schedule 2 chemicals exported or imported (additional Schedule 2 chemicals); (2) Quantities of Schedule 2 chemicals exported or imported; (3) Destination(s) of Schedule 2 chemicals exported; and (4) Source(s) of Schedule 2 chemicals imported. (c) Changes to company and plant site information that must be maintained by BIS for the ADPA, Annual Declaration on Anticipated Activities (ADAA), and the Annual Report on Exports and Imports--(1) Internal company changes. You must submit an amended declaration or report to BIS within 30 days of any change in the following information: (i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address; (ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number(s), facsimile number(s) and e-mail address(es); (iii) Company name (see paragraph (c)(2) of this section for other company changes); (iv) Company mailing address; (v) Plant site name; (vi) Plant site owner, including telephone number, and facsimile number; (vii) Plant site operator, including telephone number, and facsimile number; (viii) Plant name; (ix) Plant owner, including telephone number, and facsimile number; and (x) Plant operator, including telephone number and facsimile number. (2) Change in ownership of company, plant site, or plant. If you sold or purchased a declared plant site, plant, or trading company you must submit an amended declaration or report to BIS, either before the effective date of the change or within 30 days after the effective date of the change. The amended declaration or report must include the following information: (i) Information that must be submitted to BIS by the company selling a declared plant site: (A) Name of seller (i.e., name of the company selling a declared plant site); (B) Name of the declared plant site and U.S. Code Number for that plant site; (C) Name of purchaser (i.e., name of the new company/owner purchasing a declared plant site) and identity of contact person for the purchaser, if known; (D) Date of ownership transfer or change; (E) Additional (e.g., unique) details on the sale of the declared plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and (F) Details regarding whether the new owner will submit the next declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company. (1) If the new owner is responsible for submitting the declaration or report for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the plant site. (2) If the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site, and, if at the time of transfer of ownership, the previous owner's activities are not above the declaration or reporting thresholds set forth in Sec. 713.2(a)(1)(i)(A)(1) through (3) and Sec. 713.3(b)(1)(i) through (iii) of the CWCR, respectively, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated. (3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration thresholds set forth in Sec. 713.2(a)(1)(i)(A)(1) through (3) of the CWCR, BIS will return the declarations without action as set forth in Sec. 713.6 of the CWCR. (4) If part-year reports submitted by the previous owner and the new owner are not, when combined, above the thresholds in Sec. Sec. 713.3(b)(1)(i) through (iii) of the CWCR, BIS will return the reports without action as set forth in Sec. 713.6 of the CWCR. (ii) Information that must be submitted to BIS by the company purchasing a declared plant site: (A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site); (B) Mailing address of purchaser; (C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address; (D) Name of inspection point(s) of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s) and e- mail address(es); (E) Name of the declared plant site and U.S. Code Number for that plant site; (F) Location of the declared plant site; (G) Owner of the declared plant site, including telephone number, and facsimile number; (H) Operator of the declared plant site, including telephone number, and facsimile number; (I) Name of plant(s) where Schedule 2 activities exceed the applicable declaration threshold; (J) Owner and operator of plant(s) where Schedule 2 activities exceed the applicable declaration threshold, including telephone numbers, and facsimile numbers; (K) Location of the plant where Schedule 2 activities exceed the applicable declaration threshold; and (L) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company. Note 1 to Sec. 713.5(c): You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is [[Page 24946]] on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company. Note 2 to Sec. 713.5(c): You may notify BIS of change in ownership via a letter to the address given in Sec. 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared plant site or trading company. Note 3 to Sec. 713.5(c): For ownership changes, the declared facility or trading company will maintain its original U.S. Code Number, unless the plant site or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers. (d) Inspection-related amendments. If, following the completion of an inspection (see parts 716 and 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information that will be required pursuant to Sec. Sec. 716.10 and 717.5 of the CWCR. You must submit an amended declaration to BIS no later than 45 days following your receipt of BIS's post-inspection letter. (e) Non-substantive changes. If, subsequent to the submission of your declaration or report to BIS, you discover one or more non- substantive typographical errors in your declaration or report, you are not required to submit an amended declaration or report to BIS. Instead, you may correct these errors in a subsequent declaration or report. (f) Documentation required for amended declarations or reports. If you are required to submit an amended declaration or report to BIS pursuant to paragraph (a), (b), (c), or (d) of this section, you must submit either: (1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or (2) Both of the following: (i) A new Certification Form; and (ii) The specific forms required for the declaration or report type being amended (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the requirements of this section, to amend your declaration or report. Sec. 713.6 Declarations and reports returned without action by BIS. If you submit a declaration or report and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action (RWA). However, BIS will maintain a copy of the RWA letter. Sec. 713.7 Deadlines for submission of Schedule 2 declarations, reports, and amendments. Declarations, reports, and amendments required under this part must be postmarked by the appropriate date identified in Supplement No. 2 to this part 713. Required declarations, reports, and amendments include: (a) Annual declaration on past activities (production, processing, or consumption of Schedule 2 chemicals during the previous calendar year); (b) Annual report on exports and imports of Schedule 2 chemicals by plant sites, trading companies, and other persons subject to the CWCR (during the previous calendar year); (c) Combined declaration and report (production, processing, or consumption of Schedule 2 chemicals, as well as exports or imports of the same or different Schedule 2 chemicals, by a declared plant site during the previous calendar year); (d) Annual declaration on anticipated activities (production, processing or consumption) involving Schedule 2 chemicals during the next calendar year; (e) Declaration on Additionally Planned Activities (production, processing or consumption) involving Schedule 2 chemicals; and (f) Amended declaration and report, including combined declaration and report. Supplement No. 1 to Part 713.--Schedule 2 Chemicals ------------------------------------------------------------------------ (CAS registry number) ------------------------------------------------------------------------ A. Toxic chemicals: (1) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] (78-53-5) phosphorothiolate and corresponding alkylated or protonated salts.................................. (2) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)- (382-21-8) 1-propene......................................... (3) BZ: 3-Quinuclidinyl benzilate.................. (6581-06-2) B. Precursors: (4) Chemicals, except for those listed in Schedule (676-97-1) 1, containing a phosphorus atom to which is bonded one methyl, ethyl or propyl (normal or iso) group but not further carbon atoms, e.g. Methylphosphonyl dichloride....................... Dimethyl methylphosphonate..................... (756-79-6) Exemption: Fonofos: O-Ethyl S-phenyl (944-22-9) ethylphosphono-thiolothionate................. (5) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides (6) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me, Et, n-Pr or i-Pr)-phosphoramidates (7) Arsenic trichloride............................ (7784-34-1) (8) 2,2-Diphenyl-2-hydroxyacetic acid.............. (76-93-7) (9) Quinuclidine-3-ol.............................. (1619-34-7) (10) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl- 2-chlorides and corresponding protonated salts (11) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane- 2-ols and corresponding protonated salts Exemptions: N,N-Dimethylaminoethanol and (108-01-0) corresponding protonated salts................ N,N-Diethylaminoethanol and corresponding (100-37-8) protonated salts.............................. (12) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane- 2-thiols and corresponding protonated salts (13) Thiodiglycol: Bis(2-hydroxyethyl)sulfide...... (111-48-8) (14) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol.... (464-07-3) ------------------------------------------------------------------------ Notes to Supplement No. 1 Note 1: Note that the following Schedule 2 chemicals are controlled for export purposes by the Directorate of Defense Trade Controls of the Department of State under the International Traffic in Arms Regulations (22 CFR parts 120 through 130): Amiton: O,O-Diethyl S-[2- (diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (78-53-5); BZ: 3-Quinuclidinyl benzilate 6581-06-2); and Methylphosphonyl dichloride (676-97-1). [[Page 24947]] Note 2: All Schedule 2 chemicals not listed in Note 1 to this Supplement are controlled for export purposes under the Export Administration Regulations (see part 774 of the EAR, the Commerce Control List). Supplement No. 2 to Part 713.--Deadlines for Submission of Schedule 2 Declarations, Reports, and Amendments ------------------------------------------------------------------------ Declarations and reports Applicable forms Due dates ------------------------------------------------------------------------ Annual Declaration on Past Certification, 2-1, February 28 of the Activities (previous 2-2, 2-3, 2-3A, 2- year following any calendar year)--Declared 3B (if also calendar year in plant site (production, exported or which the processing, or consumption). imported), A (as production, appropriate), B processing, or (optional). consumption of a Schedule 2 chemical exceeded the applicable declaration thresholds in Sec. 713.2(a)(1)(i) of the CWCR. Annual Report on Exports and Certification, 2-1, February 28 of the Imports (previous calendar 2-3B, A (as year following any year)--Plant site, trading appropriate), B calendar year in company, other persons. (optional). which exports or imports of a Schedule 2 chemical by a plant site, trading company, or other person subject to the CWCR (as described in Sec. 713.3(a)(2) of the CWCR) exceeded the applicable thresholds in Sec. 713.3(b)(1) of the CWCR. Combined Declaration & Certification, 2-1, February 28 of the Report--Declared plant site 2-2, 2-3, 2-3A, 2- year following any (production, processing, or 3B, A (as calendar year in consumption; exports and appropriate), B which the imports). (optional). production, processing, or consumption of a Schedule 2 chemical and the export or import of the same or a different Schedule 2 chemical by a declared plant site exceeded the applicable thresholds in Sec. Sec. 713.2(a)(1)(i) and 713.3(b)(1), respectively, of the CWCR. Annual Declaration on Certification, 2-1, September 3 of the Anticipated Activities 2-2, 2-3, 2-3A, 2- year prior to any (next calendar year). 3C, A (as calendar year in appropriate), B which Schedule 2 (optional). activities are anticipated to occur. Declaration on Additionally Certification, 2-1, 15 calendar days Planned Activities 2-2, 2-3, 2-3A, 2- before the (production, processing and 3C, A (as additionally consumption). appropriate), B planned activity (optional). begins. Amended Declaration......... Certification, 2-1, 2-2, 2-3 2-3A, 2-3B (if also exported or imported), A (as appropriate), B (optional). --Declaration .................... --15 calendar days information. after change in information. --Company information... .................... --30 calendar days after change in information. --Post-inspection letter .................... --45 calendar days after receipt of letter. Amended Report.............. Certification, 2-1, --15 calendar days 2-3B, A (as after change in appropriate), B information. (optional). Amended Combined Declaration Certification, 2-1, --15 calendar days & Report. 2-2, 2-3, 2-3A, 2- after change in 3B, A (as information. appropriate), B (optional). ------------------------------------------------------------------------ PART 714--ACTIVITIES INVOLVING SCHEDULE 3 CHEMICALS Sec. 714.1 Annual declaration requirements for plant sites that produce a Schedule 3 chemical in excess of 30 metric tons. 714.2 Annual reporting requirements for exports and imports in excess of 30 metric tons of Schedule 3 chemicals. 714.3 Advance declaration requirements for additionally planned production of Schedule 3 chemicals. 714.4 Amended declaration or report. 714.5 Declarations and reports returned without action by BIS. 714.6 Deadlines for submission of Schedule 3 declarations, reports, and amendments. Supplement No. 1 to Part 714--Schedule 3 Chemicals Supplement No. 2 to Part 714--Deadlines for Submission of Schedule 3 Declarations, Reports, and Amendments Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 714.1 Annual declaration requirements for plant sites that produce a Schedule 3 chemical in excess of 30 metric tons. (a) Declaration of production of Schedule 3 chemicals for purposes not prohibited by the CWC.--(1) Production quantities that trigger the declaration requirement. You must complete the appropriate forms specified in paragraph (b) of this section if you have produced or anticipate producing a Schedule 3 chemical (see Supplement No. 1 to this part) as follows: (i) Annual declaration on past activities. You produced at one or more plants on your plant site in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year. (ii) Annual declaration on anticipated activities. You anticipate that you will produce at one or more plants on your plant site in excess of 30 metric tons of any single Schedule 3 chemical in the next calendar year. (2) Schedule 3 chemical production. (i) For the purpose of determining Schedule 3 production, you must include all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared. (ii) For the purpose of determining if a Schedule 3 chemical is subject to declaration, you must declare an intermediate Schedule 3 chemical, but not a transient intermediate Schedule 3 chemical. (3) Mixtures containing a Schedule 3 chemical. (i) When you must count the quantity of a Schedule 3 chemical in a [[Page 24948]] mixture for declaration purposes. The quantity of each Schedule 3 chemical contained in a mixture must be counted for declaration purposes only if the concentration of each Schedule 3 chemical in the mixture is 80% or more by volume or by weight, whichever yields the lesser percent. (ii) How to count the amount of a Schedule 3 chemical in a mixture. If your mixture contains 80% or more concentration of a Schedule 3 chemical, you must count only the amount (weight) of the Schedule 3 chemical in the mixture, not the total weight of the mixture. (b) Types of declaration forms to be used.--(1) Annual declaration on past activities. You must complete the Certification Form and Forms 3-1, 3-2, 3-3, and Form A if one or more plants on your plant site produced in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year. Form B is optional. (2) Annual declaration on anticipated activities. You must complete the Certification Form, and Forms 3-1 and 3-3 if you anticipate that you will produce at one or more plants on your plant site in excess of 30 metric tons of any single Schedule 3 chemical in the next calendar year. (c) Quantities to be declared. (1) Production of a Schedule 3 chemical in excess of 30 metric tons. If your plant site is subject to the declaration requirements of paragraph (a) of this section, you must declare the range within which the production at your plant site falls (30 to 200 metric tons, 200 to 1,000 metric tons, etc.) as specified on Form 3-3. When specifying the range of production for your plant site, you must aggregate the production quantities of all plants on the plant site that produced the Schedule 3 chemical in amounts greater than 30 metric tons. Do not aggregate amounts of production from plants on the plant site that did not individually produce a Schedule 3 chemical in amounts greater than 30 metric tons. You must complete a separate Form 3-3 for each Schedule 3 chemical for which production at your plant site exceeds 30 metric tons. (2) Rounding. To determine the production range into which your plant site falls, add all the production of the declared Schedule 3 chemical during the calendar year from all plants on your plant site that produced the Schedule 3 chemical in amounts exceeding 30 metric tons, and round to the nearest ten metric tons. (d) ``Declared'' Schedule 3 plant site. A plant site that submitted a declaration pursuant to paragraph (a)(1) of this section is a ``declared'' Schedule 3 plant site. (e) Routine inspections of declared Schedule 3 plant sites. A ``declared'' Schedule 3 plant site is subject to routine inspection by the Organization for the Prohibition of Chemical Weapons (see part 716 of the CWCR) if: (1) The declared plants on your plant site produced in excess of 200 metric tons aggregate of any Schedule 3 chemical during the previous calendar year; or (2) You anticipate that the declared plants on your plant site will produce in excess of 200 metric tons aggregate of any Schedule 3 chemical during the next calendar year. Sec. 714.2 Annual reporting requirements for exports and imports in excess of 30 metric tons of Schedule 3 chemicals. (a) Any person subject to the CWCR that exported from or imported into the United States in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year has a reporting requirement under this section. (1) Annual report on exports and imports. Declared plant sites, undeclared plant sites, trading companies, or any other person subject to the CWCR that exported from or imported into the United States in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year must submit an annual report on exports and imports. Note 1 to Sec. 714.2(a)(1): Declared and undeclared plant sites must count, for reporting purposes, all exports from and imports to the entire plant site, not only from or to individual plants on the plant site. Note 2 to Sec. 714.2(a)(1): The U.S. Government will not submit to the OPCW company-specific information relating to the export or import of Schedule 3 chemicals contained in reports. The U.S. Government will add all export and import information contained in reports to establish the U.S. national aggregate declaration on exports and imports. (2) Mixtures containing a Schedule 3 chemical. The quantity of a Schedule 3 chemical contained in a mixture must be counted for reporting an export or import only if the concentration of the Schedule 3 chemical in the mixture is 80% or more by volume or by weight, whichever yields the lesser percent. For reporting purposes, only count the weight of the Schedule 3 chemical in the mixture, not the entire weight of the mixture. Note to Sec. 714.2(a)(2): The ``80% and above'' mixtures rule applies only for reporting purposes. This rule does not apply for purposes of determining whether the export of your mixture to a non- State Party requires an End-Use Certificate or for determining whether you need an export license from BIS (see 15 CFR 742.2, 742.18 and 745.2 of the Export Administration Regulations) or from the Department of State (see the International Traffic in Arms Regulations (22 CFR parts 120 through 130)). (b) Types of forms to be used.--(1) Declared Schedule 3 plant sites. (i) If your plant site is declared for production of a Schedule 3 chemical (and has completed questions 3-3.1 and 3-3.2 on Form 3-3) and you also exported from or imported to your plant site in excess of 30 metric tons of that same Schedule 3 chemical, you must report the export or import by either: (A) Completing question 3-3.3 on Form 3-3 on your declaration for that same Schedule 3 chemical; or (B) Submitting, separately from your declaration, a Certification Form, Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional. (ii) If your plant site is declared for production of a Schedule 3 chemical and you exported or imported in excess of 30 metric tons of a different Schedule 3 chemical, you must report the export or import by either: (A) Submitting, along with your declaration, a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional; or (B) Submitting, separately from your declaration, a Certification Form, Form 3-1 and a Form 3.3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional. (2) If you are an undeclared plant site, a trading company, or any other person subject to the CWCR, you must submit a Certification Form, Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional. (c) Quantities to be reported--(1) Calculations. If you exported from or imported to your plant site or trading company more than 30 metric tons of a Schedule 3 chemical in the previous calendar year, you must report all exports and imports of that chemical by country of destination or country of origin, respectively, and indicate the total amount exported to or imported from each country. (2) Rounding. For purposes of reporting exports and imports of a Schedule 3 chemical, you must total all exports and imports per calendar year [[Page 24949]] per recipient or source and then round to the nearest 0.1 metric tons. Note to Sec. 714.2(c): Under the Convention, the United States is obligated to provide the OPCW a national aggregate annual declaration of the quantities of each Schedule 3 chemical exported and imported, with a quantitative breakdown for each country or destination involved. The U.S. Government will not submit your company-specific information relating to the export or import of a Schedule 3 chemical reported under this Sec. 714.2. The U.S. Government will add all export and import information submitted by various facilities under this section to produce a national aggregate annual declaration of destination-by-destination trade for each Schedule 3 chemical. Sec. 714.3 Advance declaration requirements for additionally planned production of Schedule 3 chemicals. (a) Declaration requirements. (1) You must declare additionally planned production of Schedule 3 chemicals after the annual declaration on anticipated activities for the next calendar year has been delivered to BIS if: (i) You plan that a previously undeclared plant on your plant site under Sec. 714.1(a)(1)(ii) of the CWCR will produce a Schedule 3 chemical above the declaration threshold; (ii) You plan to produce at a plant declared under Sec. 714.1(a)(1)(ii) of the CWCR an additional Schedule 3 chemical above the declaration threshold; (iii) You plan to increase the production of a Schedule 3 chemical by declared plants on your plant site from the amount exceeding the applicable declaration threshold to an amount exceeding the applicable inspection threshold (see Sec. 716.1(b)(3) of the CWCR); or (iv) You plan to increase the aggregate production of a Schedule 3 chemical at a declared plant site to an amount above the upper limit of the range previously declared under Sec. 714.1(a)(1)(ii) of the CWCR. (2) If you must submit a declaration on additionally planned activities because you plan to engage in any of the activities listed in paragraphs (a)(1)(i) through (iv) of this section, you also should declare any changes to the anticipated purposes of production or product group codes. You do not have to submit a declaration on additionally planned activities if you are only changing your purposes of production or product group codes. (b) Declaration forms to be used. If you are required to declare additionally planned activities pursuant to paragraph (a) of this section, you must complete the Certification Form and Forms 3-1, 3-2, and 3-3 as appropriate. Such forms are due to BIS at least 15 days in advance of the beginning of the additional or new activity. Sec. 714.4 Amended declaration or report. In order for BIS to maintain accurate information on previously submitted plant site declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or reporting requirements, amended declarations or reports will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities and annual reports on exports and imports submitted for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report. (a) Changes to information that directly affects a declared plant site's Annual Declaration of Past Activities (ADPA) or Combined Annual Declaration or Report which was previously submitted to BIS. You must submit an amended declaration or report to BIS within 15 days of determining that there has been a change in any of the following information that you have previously declared or reported: (1) Types of Schedule 3 chemicals produced (e.g., production of additional Schedule 3 chemicals); (2) Production range (e.g., from 30 to 200 metric tons to above 200 to 1000 metric tons) of Schedule 3 chemicals; (3) Purpose of Schedule 3 chemical production (e.g., additional end-uses); or (4) Addition of new plant(s) for production of Schedule 3 chemicals. (b) Changes to export or import information submitted in Annual Reports on Exports and Imports from undeclared plant sites, trading companies and U.S. persons. You must submit an amended report or amended combined declaration and report to BIS within 15 days of any change in the following export or import information: (1) Types of Schedule 3 chemicals exported or imported (additional Schedule 3 chemicals); (2) Quantities of Schedule 3 chemicals exported or imported; (3) Destination(s) of Schedule 3 chemicals exported; and (4) Source(s) of Schedule 3 chemicals imported. (c) Changes to company and plant site information submitted in the ADPA, the Annual Declaration of Anticipated Activities, and the Annual Report on Exports and Imports--(1) Internal company changes. You must submit an amended declaration or report to BIS within 30 days of any change in the following information: (i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address; (ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number, and facsimile number, and e-mail address(es); (iii) Company name (see 714.4(c)(2) for other company changes); (iv) Company mailing address; (v) Plant site name; (vi) Plant site owner, including telephone number and facsimile number; (vii) Plant site operator, including telephone number and facsimile number; (viii) Plant name; (xi) Plant owner, including telephone number and facsimile number; and (x) Plant operator, including telephone number and facsimile number. (2) Change in ownership of company, plant site, or plant. If you sold or purchased a declared company, plant site or plant, you must submit an amended declaration or report to BIS, either before the effective date of the change or within 30 days after the effective date of the change. The amended declaration or report must include the following information. (i) Information that must be submitted to BIS by a company selling a declared plant site: (A) Name of seller (i.e., name of the company selling a declared plant site); (B) Name of declared plant site and U.S. Code Number for that plant site; (C) Name of purchaser (i.e., name of company purchasing a declared plant site) and identity of the new owner and contact person for the purchaser, if known; (D) Date of ownership transfer; (E) Additional (e.g., unique) details on the sale of the plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and (F) Details regarding whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and the new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company. (1) If the new owner is responsible for submitting the declaration or report for [[Page 24950]] the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the plant site or trading company. (2) If the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company, and, at the time of transfer of ownership, the previous owner's activities are not above the declaration or reporting thresholds set forth in Sec. 714.1(a)(1) and Sec. 714.2(a)(1) of the CWCR, respectively, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated. (3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in Sec. 714.1(a)(1) of the CWCR, BIS will return the declarations without action as set forth in Sec. 714.5 of the CWCR. (4) If part-year reports are not, when combined, above the reporting threshold set forth in Sec. 714.2(a)(1) of the CWCR, BIS will return the reports without action as set forth in Sec. 714.5 of the CWCR. (ii) Information that must be submitted to BIS by the company purchasing a declared plant site: (A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site); (B) Mailing address of purchaser; (C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address; (D) Name(s) of inspection point(s)s of contact (I-POC) for the purchaser, including telephone number, facsimile number, and e-mail address(es); (E) Name of the declared plant site and U.S. Code Number for that plant site; (F) Location of the declared plant site; (G) Operator of the declared plant site, including telephone number, and facsimile number; (H) Name of plant where Schedule 3 production exceeds the declaration threshold; (I) Owner of plant where Schedule 3 production exceeds the declaration threshold; (J) Operator of plant where Schedule 3 production exceeds the declaration threshold; and (K) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company. Note 1 to Sec. 714.4(c): You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company. Note 2 to Sec. 714.4(c): You may notify BIS of change in ownership via a letter to the address given in Sec. 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared plant site or trading company. Note 3 to Sec. 714.4(c): For ownership changes, the declared plant site or trading company will maintain its original U.S. Code Number, unless the plant site or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers. (d) Inspection-related amendments. If, following the completion of an inspection (see parts 716 and 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information to be amended pursuant to Sec. Sec. 716.10 and 717.5(b) of the CWCR. Amended declarations must be submitted to BIS no later than 45 days following your receipt of BIS's post-inspection letter. (e) Non-substantive changes. If, subsequent to the submission of your declaration or report to BIS, you discover one or more non- substantive typographical errors in your declaration or report, you are not required to submit an amended declaration or report to BIS. Instead, you may correct these errors in a subsequent declaration or report. (f) Documentation required for amended declarations or reports. If you are required to submit an amended declaration or report to BIS pursuant to paragraph (a), (b), (c), or (d) of this section, you must submit either: (1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or (2) Both of the following: (i) A new Certification Form; and (ii) The specific forms required for the declaration or report type being amended (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the requirements of this section, to amend your declaration or report. Sec. 714.5 Declarations and reports returned without action by BIS. If you submit a declaration or report and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action. However, BIS will maintain a copy of the RWA letter. Sec. 714.6 Deadlines for submission of Schedule 3 declarations, reports, and amendments. Declarations, reports, and amendments required under this part must be postmarked by the appropriate date identified in Supplement No. 2 to this part 714 of the CWCR. Required declarations, reports, and amendments include: (a) Annual declaration on past activities (production of Schedule 3 chemicals during the previous calendar year); (b) Annual report on exports and imports of Schedule 3 chemicals from plant sites, trading companies, and other persons subject to the CWCR (during the previous calendar year); (c) Combined declaration and report (production of Schedule 3 chemicals, as well as exports or imports of the same or different Schedule 3 chemicals, by a declared plant site during the previous calendar year); (d) Annual declaration on anticipated activities (anticipated production of Schedule 3 chemicals during the next calendar year); (e) Declaration on Additionally Planned Activities (additionally planned production of Schedule 3 chemicals); and (f) Amended declaration and report, including combined declaration and report. [[Page 24951]] Supplement No. 1 to Part 714.--Schedule 3 Chemicals ------------------------------------------------------------------------ (CAS registry number) ------------------------------------------------------------------------ A. Toxic chemicals: (1) Phosgene: Carbonyl dichloride.................. (75-44-5) (2) Cyanogen chloride.............................. (506-77-4) (3) Hydrogen cyanide............................... (74-90-8) (4) Chloropicrin: Trichloronitromethane............ (76-06-2) B. Precursors: (5) Phosphorus oxychloride......................... (10025-87-3) (6) Phosphorus trichloride......................... (7719-12-2) (7) Phosphorus pentachloride....................... (10026-13-8) (8) Trimethyl phosphite............................ (121-45-9) (9) Triethyl phosphite............................. (122-52-1) (10) Dimethyl phosphite............................ (868-85-9) (11) Diethyl phosphite............................. (762-04-9) (12) Sulfur monochloride........................... (10025-67-9) (13) Sulfur dichloride............................. (10545-99-0) (14) Thionyl chloride.............................. (7719-09-7) (15) Ethyldiethanolamine........................... (139-87-7) (16) Methyldiethanolamine.......................... (105-59-9) (17) Triethanolamine............................... (102-71-6) ------------------------------------------------------------------------ Note to Supplement No. 1: Refer to Supplement No. 1 to part 774 of the Export Administration Regulations (the Commerce Control List), ECCNs 1C350 and 1C355, for export controls related to Schedule 3 chemicals. Supplement No. 2 to Part 714.--Deadlines for Submission of Schedule 3 Declarations, Reports, and Amendments ------------------------------------------------------------------------ Declarations Applicable forms Due dates ------------------------------------------------------------------------ Annual Declaration on Past Certification, 3-1, February 28 of the Activities (previous 3-2, 3-3 (if also year following any calendar year)--Declared exported or calendar year in plant site (production). imported), A (as which the appropriate), B production of a (optional). Schedule 3 chemical exceeded the declaration threshold in Sec. 714.1(a)(1)(i) of the CWCR. Annual Report on Exports and Certification, 3-1, February 28 of the Imports (previous calendar 3-3.3 and 3-3.4, A year following any year)--Plant site, trading (as appropriate), B calendar year in company, other persons. (optional). which exports or imports of a Schedule 3 chemical by a plant site, trading company, or other person subject to the CWCR (as described in Sec. 714.2(a) of the CWCR) exceeded the threshold in Sec. 714.2(a) of the CWCR. Combined Declaration & Certification, 3-1, February 28 of the Report. 3-2, and 3-3, A (as year following any appropriate), B calendar year in (optional). which the production of a Schedule 3 chemical and the export or import of the same or a different Schedule 3 chemical by a declared plant site exceeded the applicable thresholds in Sec. Sec. 714.1(a)(1)(i) and 714.2(a), respectively, of the CWCR. Annual Declaration on Certification, 3-1, September 3 of the Anticipated Activities 3-2, 3-3.2, A (as year prior to any (Production) (next calendar appropriate), B calendar year in year). (optional). which Schedule 3 production is anticipated to occur. Declaration on Additionally Certification, 3-1, 15 calendar days Planned Activities. 3-3.1 and 3-3.2, A before the (as appropriate), B additionally (optional). planned activity begins. Amended Declaration......... Certification, 3-1, 3-2, 3-3. --Declaration .................... --15 calendar days information. after change in information. --Company information... .................... --30 calendar days after change in information. --Post-inspection letter .................... --45 calendar days after receipt of letter. Amended Report.............. Certification, 3-1, --15 calendar days 3-2, 3-3, A (as after change in appropriate), B information. (optional). Amended Combined Declaration Certification, 3-1, --15 calendar days & Report. 3-2, 3-3, A (as after change in appropriate), B information. (optional). ------------------------------------------------------------------------ PART 715--ACTIVITIES INVOLVING UNSCHEDULED DISCRETE ORGANIC CHEMICALS (UDOCs) Sec. 715.1 Annual declaration requirements for production by synthesis of unscheduled discrete organic chemicals (UDOCs). 715.2 Amended declaration. 715.3 Declarations returned without action by BIS. 715.4 Deadlines for submitting UDOC declarations, no changes authorization forms, and amendments. Supplement No. 1 to Part 715--Definition of an Unscheduled Discrete Organic Chemical [[Page 24952]] Supplement No. 2 to Part 715--Examples of Unscheduled Discrete Organic Chemicals (UDOCS) and UDOC Production Supplement No. 3 to Part 715--Deadlines for Submission of Declarations, No Changes Authorization Forms, and Amendments for Unscheduled Discrete Organic Chemical (UDOC) Facilities Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 715.1 Annual declaration requirements for production by synthesis of unscheduled discrete organic chemicals (UDOCs). (a) Declaration of production by synthesis of UDOCs for purposes not prohibited by the CWC.--(1) Production quantities that trigger the declaration requirement. See Sec. 711.6 of the CWCR for information on obtaining the forms you will need to declare production of unscheduled discrete organic chemicals. You must complete the forms specified in paragraph (b) of this section if your plant site produced by synthesis: (i) In excess of 200 metric tons aggregate of all UDOCs (including all UDOCs containing the elements phosphorus, sulfur or fluorine, referred to as ``PSF chemicals'') during the previous calendar year; or (ii) In excess of 30 metric tons of an individual PSF chemical at one or more plants at your plant site during the previous calendar year. Note to Sec. 715.1(a)(1)(ii): In calculating the aggregate production quantity of each individual PSF chemical produced by a PSF plant, do not include production of a PSF chemical that was produced in quantities less than 30 metric tons. Include only production quantities from those PSF plants that produced more than 30 metric tons of an individual PSF chemical. (2) UDOCs subject to declaration requirements under this part. (i) UDOCs subject to declaration requirements under this part are those produced by synthesis that have been isolated for: (A) Use; or (B) Sale as a specific end product. (ii) Exemptions. (A) Polymers and oligomers consisting of two or more repeating units; (B) Chemicals and chemical mixtures produced through a biological or biomediated process; (C) Products from the refining of crude oil, including sulfur- containing crude oil; (D) Metal carbides (i.e., chemicals consisting only of metal and carbon); and (E) UDOCs produced by synthesis that are ingredients or by-products in foods designed for consumption by humans and/or animals. Note to Sec. 715.1(a)(2): See Supplement No. 2 to this part 715 for examples of UDOCs subject to the declaration requirements of this part, and for examples of activities that are not considered production by synthesis. (3) Exemptions for UDOC plant sites. UDOC plant sites that exclusively produced hydrocarbons or explosives are exempt from UDOC declaration requirements. For the purposes of this part, the following definitions apply for hydrocarbons and explosives: (i) Hydrocarbon means any organic compound that contains only carbon and hydrogen; and (ii) Explosive means a chemical (or a mixture of chemicals) that is included in Class 1 of the United Nations Organization hazard classification system. (b) Types of declaration forms to be used.--(1) Annual declaration on past activities. You must complete the Certification Form and Form UDOC (consisting of two pages), unless there are no changes from the previous year's declaration and you submit a No Changes Authorization Form pursuant to paragraph (b)(2) of this section. Attach Form A as appropriate; Form B is optional. (2) No Changes Authorization Form. You may complete the No Changes Authorization Form if there are no updates or changes to any information (except the certifying official and dates signed and submitted) in your plant site's previously submitted annual declaration on past activities. Your plant site's activities will be declared to the OPCW and subject to inspection, if applicable, based upon the data reported in the most recent UDOC Declaration that you submitted to BIS. Note to Sec. 715.1(b)(2): If, after submitting the No Changes Authorization Form, you have changes to information, you must submit a complete amendment to the annual declaration on past activities. See Sec. 715.2 of the CWCR. (c) ``Declared'' UDOC plant site. A plant site that submitted a declaration pursuant to paragraph (a)(1) of this section is a ``declared'' UDOC plant site. (d) Routine inspections of declared UDOC plant sites. A ``declared'' UDOC plant site is subject to routine inspection by the Organization for the Prohibition of Chemical Weapons (see part 716 of the CWCR) if it produced by synthesis more than 200 metric tons aggregate of UDOCs during the previous calendar year. Sec. 715.2 Amended declaration. In order for BIS to maintain accurate information on previously submitted plant site declarations, including current information necessary to facilitate inspection notifications and activities or to communicate declaration requirements, amended declarations will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities submitted for the previous calendar year, unless specified otherwise in a final inspection report. (a) Changes to information that directly affects a declared plant site's Annual Declaration of Past Activities (ADPA) which was previously submitted to BIS. You must submit an amended declaration to BIS within 15 days of any change in the following information: (1) Product group codes for UDOCs produced in quantities exceeding the applicable declaration threshold specified in Sec. 715.1(a)(1) of the CWCR; (2) Approximate number of plants at the declared plant site that produced any amount of UDOCs (including all PSF chemicals); (3) Aggregate amount of production (by production range) of UDOCs produced by all plants at the declared plant site; (4) Exact number of plants at the declared plant site that individually produced more than 30 metric tons of a single PSF chemical; and (5) Production range of each plant at the declared plant site that individually produced more than 30 metric tons of a single PSF chemical. (b) Changes to company and plant site information submitted in the ADPA that must be maintained by BIS.--(1) Internal company changes. You must submit an amended declaration to BIS within 30 days of any change in the following information: (i) Name of declaration point of contact (D-POC), including telephone number, facsimile number, and e-mail address; (ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number, facsimile number(s) and e-mail address(es); (iii) Company name (see 715.2(b)(2) for other company changes); (iv) Company mailing address; (v) Plant site name; (vi) Plant site owner, including telephone number and facsimile number; and (vii) Plant site operator, including telephone number and facsimile number. (2) Change in ownership of company or plant site. If you sold or purchased a declared plant site, you must submit an amended declaration to BIS, either before the effective date of the change or within 30 days after the effective date of [[Page 24953]] the change. The amended declaration must include the following information. (i) Information that must be submitted to BIS by the company selling a declared plant site: (A) Name of seller (i.e., name of company selling a declared plant site); (B) Name of declared plant site name and U.S. Code Number for that plant site; (C) Name of purchaser (i.e., name of new company purchasing a declared plant site) and identity of contact person for the purchaser, if known; (D) Date of ownership transfer or change; (E) Additional details on the sale of the declared plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and (F) Details regarding whether the new owner will submit the declaration for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the plant site. (1) If the new owner is responsible for submitting the declaration for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the plant site. (2) If the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the plant site, and, if at the time of transfer of ownership, the previous owner's activities are not above the declaration thresholds set forth in Sec. 715.1(a)(1) of the CWCR, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated. (3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in Sec. 715.1(a)(1) of the CWCR, BIS will return the declarations without action as set forth in Sec. 715.3 of the CWCR. (ii) Information that must be submitted to BIS by the company purchasing a declared plant site: (A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site); (B) Mailing address of purchaser; (C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address; (D) Name(s) of inspection point(s) of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s), and e- mail address(es); (E) Name of the declared plant site and U.S. Code Number for that plant site; (F) Location of the declared plant site; (G) Name of plant site where the production of UDOCs exceeds the applicable declaration threshold; (H) Owner of plant site where the production of UDOCs exceeds the applicable declaration threshold, including telephone number and facsimile number; (I) Operator of plant site where the production of UDOCs exceeds the applicable declaration threshold, including telephone number and facsimile number; and (J) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or report for the periods of the calendar year during which each owned the plant site. Note 1 to Sec. 715.2(b): You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company. Note 2 to Sec. 715.2(b): You may notify BIS of change in ownership via a letter to the address given in Sec. 711.6 of the CWCR. If you are submitting an amended declaration, use Form B to address details regarding the sale of the declared plant site. Note 3 to Sec. 715.2(b): For ownership changes, the declared plant site will maintain its original U.S. Code Number, unless the plant site is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers. (c) Inspection-related amendments. If, following completion of an inspection (see part 716 or 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information that will be required pursuant to Sec. Sec. 716.10 and 717.5 of the CWCR. You must submit an amended declaration to BIS no later than 45 days following your receipt of BIS's post-inspection letter. (d) Non-substantive changes. If, subsequent to the submission of your declaration to BIS, you discover one or more non-substantive typographical errors in your declaration, you are not required to submit an amended declaration to BIS. Instead, you may correct these errors in a subsequent declaration. (e) Documentation required for amended declarations. If you are required to submit an amended declaration to BIS pursuant to paragraph (a), (b), or (c) of this section, you must submit either: (1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration; or (2) Both of the following: (i) A new Certification Form; and (ii) The specific form required for the declaration containing the corrected information required, in accordance with the requirements of this section, to amend your declaration. Sec. 715.3 Declarations returned without action by BIS. If you submit a declaration and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration that is returned without action. However, BIS will maintain a copy of the RWA letter. Sec. 715.4 Deadlines for submitting UDOC declarations, no changes authorization forms, and amendments. Declarations, no changes authorization forms, and amendments required under this part must be postmarked by the appropriate dates identified in Supplement No. 3 to this part 715 of the CWCR. Required documents under this part include: (a) Annual Declaration on Past Activities (UDOC production during the previous calendar year); (b) No Changes Authorization Form (may be completed and submitted to BIS when there are no changes to any information in your plant site's previously submitted annual declaration on past activities, except the certifying official and the dates signed and submitted); and (c) Amended declaration. [[Page 24954]] Supplement No. 1 to Part 715--Definition of an Unscheduled Discrete Organic Chemical Unscheduled discrete organic chemical means any chemical: (1) Belonging to the class of chemical compounds consisting of all compounds of carbon except for its oxides, sulfides and metal carbonates identifiable by chemical name, by structural formula, if known, and by Chemical Abstract Service registry number, if assigned; and (2) that is not contained in the Schedules of Chemicals (see Supplements No. 1 to parts 712 through 714 of the CWCR). Unscheduled discrete organic chemicals subject to declaration under this part are those produced by synthesis that are isolated for use or sale as a specific end-product. Note: Carbon oxides consist of chemical compounds that contain only the elements carbon and oxygen and have the chemical formula CxOy, where x and y denote integers. The two most common carbon oxides are carbon monoxide (CO) and carbon dioxide (CO2). Carbon sulfides consist of chemical compounds that contain only the elements carbon and sulfur, and have the chemical formula CaSb, where a and b denote integers. The most common carbon sulfide is carbon disulfide (CS2). Metal carbonates consist of chemical compounds that contain a metal (i.e., the Group I Alkalis, Groups II Alkaline Earths, the Transition Metals, or the elements aluminum, gallium, indium, thallium, tin, lead, bismuth or polonium), and the elements carbon and oxygen. Metal carbonates have the chemical formula Md(CO3)e, where d and e denote integers and M represents a metal. Common metal carbonates are sodium carbonate (Na2CO3) and calcium carbonate (CaCO3). In addition, metal carbides or other compounds consisting of only a metal, as described in this Note, and carbon (e.g., calcium carbide (CaC2)), are exempt from declaration requirements (see Sec. 715.1(a)(2)(ii)(D) of the CWCR). Supplement No. 2 to Part 715--Examples of Unscheduled Discrete Organic Chemicals (UDOCs) and UDOC Production (1) Examples of UDOCs not subject to declaration include: (i) UDOCs produced coincidentally as by-products that are not isolated for use or sale as a specific end product, and are routed to, or escape from, the waste stream of a stack, incinerator, or waste treatment system or any other waste stream; (ii) UDOCs, contained in mixtures, which are produced coincidentally and not isolated for use or sale as a specific end- product; (iii) UDOCs produced by recycling (i.e., involving one of the processes listed in paragraph (3) of this supplement) of previously declared UDOCs; (iv) UDOCs produced by the mixing (i.e., the process of combining or blending into one mass) of previously declared UDOCs; and (v) UDOCs that are intermediates and that are used in a single or multi-step process to produce another declared UDOC. (2) Examples of UDOCs that you must declare under part 715 of the CWCR include, but are not limited to, the following, unless they are not isolated for use or sale as a specific end product: (i) Acetophenone (CAS 98-86-2); (ii) 6-Chloro-2-methyl aniline (CAS 87-63-8); (iii) 2-Amino-3-hydroxybenzoic acid (CAS 548-93-6); and (iv) Acetone (CAS 67-64-1). (3) Examples of activities that are not considered ``production by synthesis'' under part 715 of the CWCR, which means the end products resulting from such activities would not be declared under part 715, are as follows: (i) Fermentation; (ii) Extraction; (iii) Purification; (iv) Distillation; and (v) Filtration. Supplement No. 3 to Part 715.--Deadlines for Submission of Declarations, No Changes Authorization Forms, and Amendments for Unscheduled Discrete Organic Chemical (UDOC) Facilities ------------------------------------------------------------------------ Declarations Applicable forms Due dates ------------------------------------------------------------------------ Annual Declaration on Past Certification, UDOC, February 28 of the Activities (previous A (as appropriate), year following any calendar year)--Declared B (optional). calendar year in plant site. which the production of UDOCs exceeded the applicable declaration threshold in Sec. 715.1(a)(1) of the CWCR. No Changes Authorization No Changes February 28 of the Form (declaration required, Authorization Form. year following any but no changes to data calendar year in contained in previously which the submitted annual production of UDOCs declaration on past exceeded the activities (previous applicable calendar year)--Declared declaration plant site. threshold in Sec. 715.1(a)(1) of the CWCR. Amended Declaration......... Certification, UDOC, .................... A (as appropriate), B (optional). --Declaration .................... --15 calendar days information. after change in information. --Company information... .................... --30 calendar days after change in information. --Post-inspection letter .................... --45 calendar days after receipt of letter. ------------------------------------------------------------------------ PART 716--INITIAL AND ROUTINE INSPECTIONS OF DECLARED FACILITIES Sec. 716.1 General information on the conduct of initial and routine inspections. 716.2 Purposes and types of inspections of declared facilities. 716.3 Consent to inspections; warrants for inspections. 716.4 Scope and conduct of inspections. 716.5 Notification, duration and frequency of inspections. 716.6 Facility agreements. 716.7 Samples. 716.8 On-site monitoring of Schedule 1 facilities. 716.9 Report of inspection-related costs. 716.10 Post-inspection activities. Supplement No. 1 to Part 716--Notification, Duration, and Frequency of Inspections Supplement No. 2 to Part 716--[Reserved] Supplement No. 3 to Part 716--[Reserved] Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 716.1 General information on the conduct of initial and routine inspections. This part provides general information about the conduct of initial and routine inspections of declared facilities subject to inspection under CWC Verification Annex Part VI(E), Part VII(B), Part VIII(B) and Part IX(B). See part 717 of the CWCR for provisions concerning challenge inspections. (a) Overview. Each State Party to the CWC, including the United States, has agreed to allow certain inspections of declared facilities by inspection teams employed by the Organization for the Prohibition of Chemical Weapons (OPCW) to ensure that activities are consistent with obligations under the Convention. BIS is responsible for leading, hosting and escorting inspections of all facilities subject to the provisions of the CWCR (see Sec. 710.2 of the CWCR). [[Page 24955]] (b) Declared facilities subject to initial and routine inspections--(1) Schedule 1 facilities. (i) Your declared facility is subject to inspection if it produced in excess of 100 grams aggregate of Schedule 1 chemicals in the previous calendar year or anticipates producing in excess of 100 grams aggregate of Schedule 1 chemicals during the next calendar year. (ii) If you are a new Schedule 1 production facility pursuant to Sec. 712.4 of the CWCR, your facility is subject to an initial inspection within 200 days of submitting an initial declaration. Note to Sec. 716.1(b)(1): All Schedule 1 facilities submitting a declaration are subject to inspection. (2) Schedule 2 plant sites--(i) Inspection thresholds for Schedule 2 plant sites. Your declared plant site is subject to inspection if at least one plant on your plant site produced, processed or consumed, in any of the three previous calendar years, or you anticipate that at least one plant on your plant site will produce, process or consume in the next calendar year, any Schedule 2 chemical in excess of the following: (A) 10 kg of chemical BZ: 3-Quinuclidinyl benzilate (see Schedule 2, Part A, paragraph 3 in Supplement No. 1 to part 713 of the CWCR); (B) 1 metric ton of chemical PFIB: 1,1,3,3,3-Pentafluoro- 2(trifluoromethyl)-1-propene or any chemical belonging to the Amiton family (see Schedule 2, Part A, paragraphs 1 and 2 in Supplement No. 1 to part 713 of the CWCR); or (C) 10 metric tons of any chemical listed in Schedule 2, Part B (see Supplement No. 1 to part 713 of the CWCR). (ii) Initial inspection for new Schedule 2 plant sites. Your declared plant site is subject to an initial inspection within the first year after submitting a declaration, if at least one plant on your plant site produced, processed or consumed in any of the three previous years, or you anticipate that at least one plant on your plant site will produce, process or consume in the next calendar year, any Schedule 2 chemical in excess of the threshold quantities set forth in paragraphs (b)(2)(i)(A) through (C) of this section. Note to Sec. 716.1(b)(2): The applicable inspection threshold for Schedule 2 plant sites is ten times higher than the applicable declaration threshold. Only declared plant sites, comprising at least one declared plant that exceeds the applicable inspection threshold, are subject to inspection. (3) Schedule 3 plant sites. Your declared plant site is subject to inspection if the declared plants on your plant site produced during the previous calendar year, or you anticipate they will produce in the next calendar year, in excess of 200 metric tons aggregate of any Schedule 3 chemical. Note to Sec. 716.1(b)(3): The methodology for determining a declarable and inspectable plant site is different. A Schedule 3 plant site that submits a declaration is subject to inspection only if the aggregate production of a Schedule 3 chemical at all declared plants on the plant site exceeds 200 metric tons. (4) Unscheduled discrete organic chemical plant sites. Your declared plant site is subject to inspection if it produced by synthesis more than 200 metric tons aggregate of unscheduled discrete organic chemicals (UDOC) during the previous calendar year. Note 1 to Sec. 716.1(b)(4): You must include amounts of unscheduled discrete organic chemicals containing phosphorus, sulfur or fluorine in the calculation of your plant site's aggregate production of unscheduled discrete organic chemicals. Note 2 to Sec. 716.1(b)(4): All UDOC plant sites that submit a declaration based on Sec. 715.1(a)(1)(i) of the CWCR are subject to a routine inspection. (c) Responsibilities of the Department of Commerce. As the host and escort for the international Inspection Team for all inspections of facilities subject to the provisions of the CWCR under this part, BIS will: (1) Lead on-site inspections; (2) Provide Host Team notification to the facility of an impending inspection; (3) Take appropriate action to obtain an administrative warrant in the event the facility does not consent to the inspection; (4) Dispatch an advance team to the vicinity of the site to provide administrative and logistical support for the impending inspection and, upon request, to assist the facility with inspection preparation; (5) Escort the Inspection Team on-site throughout the inspection process; (6) Assist the Inspection Team with verification activities; (7) Negotiate the development of a site-specific facility agreement, if appropriate (see Sec. 716.6); and (8) Ensure that an inspection adheres to the Convention, the Act and any warrant issued thereunder, and a site-specific facility agreement, if concluded. Sec. 716.2 Purposes and types of inspections of declared facilities. (a) Schedule 1 facilities--(1) Purposes of inspections. The aim of inspections of Schedule 1 facilities is to verify that: (i) The facility is not used to produce any Schedule 1 chemical, except for the declared Schedule 1 chemicals; (ii) The quantities of Schedule 1 chemicals produced, processed or consumed are correctly declared and consistent with needs for the declared purpose; and (iii) The Schedule 1 chemical is not diverted or used for purposes other than those declared. (2) Types of inspections--(i) Initial inspections. (A) During initial inspections of declared Schedule 1 facilities, in addition to the verification activities listed in paragraph (a)(1) of this section, the Host Team and the Inspection Team will draft site-specific facility agreements (see Sec. 716.6 of the CWCR) for the conduct of routine inspections. (B) For new Schedule 1 production facilities declared pursuant to Sec. 712.4 of the CWCR, the U.S. National Authority, in coordination with BIS, will conclude a facility agreement with the OPCW before the facility begins producing above 100 grams aggregate of Schedule 1 chemicals. (ii) Routine inspections. During routine inspections of declared Schedule 1 facilities, the verification activities listed in paragraph (a)(1) of this section will be carried out pursuant to site-specific facility agreements (see Sec. 716.6 of the CWCR) developed during the initial inspections and concluded between the U.S. Government and the OPCW pursuant to the Convention. (b) Schedule 2 plant sites--(1) Purposes of inspections. (i) The general aim of inspections of declared Schedule 2 plant sites is to verify that activities are in accordance with obligations under the Convention and consistent with the information provided in declarations. Particular aims of inspections of declared Schedule 2 plant sites are to verify: (A) The absence of any Schedule 1 chemical, especially its production, except in accordance with the provisions of the Convention; (B) Consistency with declarations of production, processing or consumption of Schedule 2 chemicals; and (C) Non-diversion of Schedule 2 chemicals for activities prohibited under the Convention. (ii) During initial inspections, Inspection Teams shall collect information to determine the frequency and intensity of subsequent inspections by assessing the risk to the object and purpose of the Convention posed by the relevant chemicals, the characteristics of the plant site and the nature of the activities carried out there. The [[Page 24956]] Inspection Team will take the following criteria into account, inter alia: (A) The toxicity of the scheduled chemicals and of the end-products produced with them, if any; (B) The quantity of the scheduled chemicals typically stored at the inspected site; (C) The quantity of feedstock chemicals for the scheduled chemicals typically stored at the inspected site; (D) The production capacity of the Schedule 2 plants; and (E) The capability and convertibility for initiating production, storage and filling of toxic chemicals at the inspected site. (2) Types of inspections--(i) Initial inspections. During initial inspections of declared Schedule 2 plant sites, in addition to the verification activities listed in paragraph (b)(1) of this section, the Host Team and the Inspection Team will generally draft site-specific facility agreements for the conduct of routine inspections (see Sec. 716.6 of the CWCR). (ii) Routine inspections. During routine inspections of declared Schedule 2 plant sites, the verification activities listed in paragraph (b)(1) of this section will be carried out pursuant to any appropriate site-specific facility agreements developed during the initial inspections (see Sec. 716.6 of the CWCR), and concluded between the U.S. Government and the OPCW pursuant to the Convention and the Act. (c) Schedule 3 plant sites--(1) Purposes of inspections. The general aim of inspections of declared Schedule 3 plant sites is to verify that activities are consistent with the information provided in declarations. The particular aim of inspections is to verify the absence of any Schedule 1 chemical, especially its production, except in accordance with the Convention. (2) Routine inspections. During routine inspections of declared Schedule 3 plant sites, in addition to the verification activities listed in paragraph (c)(1) of this section, the Host Team and the Inspection Team may draft site-specific facility agreements for the conduct of subsequent routine inspections (see Sec. 716.6 of the CWCR). Although the Convention does not require facility agreements for declared Schedule 3 plant sites, the owner, operator, occupant or agent in charge of a plant site may request one. The Host Team will not seek a facility agreement if the owner, operator, occupant or agent in charge of the plant site does not request one. Subsequent routine inspections will be carried out pursuant to site-specific facility agreements, if applicable. (d) Unscheduled discrete organic chemical plant sites--(1) Purposes of inspections. The general aim of inspections of declared UDOC plant sites is to verify that activities are consistent with the information provided in declarations. The particular aim of inspections is to verify the absence of any Schedule 1 chemical, especially its production, except in accordance with the Convention. (2) Routine inspections. During routine inspections of declared UDOC plant sites, in addition to the verification activities listed in paragraph (d)(1) of this section, the Host Team and the Inspection Team may develop draft site-specific facility agreements for the conduct of subsequent routine inspections (see Sec. 716.6 of the CWCR). Although the Convention does not require facility agreements for declared UDOC plant sites, the owner, operator, occupant or agent in charge of a plant site may request one. The Host Team will not seek a facility agreement if the owner, operator, occupant or agent in charge of the plant site does not request one. Subsequent routine inspections will be carried out pursuant to site-specific facility agreements, if applicable. Sec. 716.3 Consent to inspections; warrants for inspections. (a) The owner, operator, occupant or agent in charge of a facility may consent to an initial or routine inspection. The individual giving consent on behalf of the facility represents that he or she has the authority to make this decision for the facility. (b) In instances where consent is not provided by the owner, operator, occupant or agent in charge for an initial or routine inspection, BIS will seek administrative warrants as provided by the Act. Sec. 716.4 Scope and conduct of inspections. (a) General. Each inspection shall be limited to the purposes described in Sec. 716.2 of the CWCR and shall be conducted in the least intrusive manner, consistent with the effective and timely accomplishment of its purpose as provided in the Convention. (b) Scope.--(1) Description of inspections. During inspections, the Inspection Team: (i) Will receive a pre-inspection briefing from facility representatives; (ii) Will visually inspect the facilities or plants producing scheduled chemicals or UDOCs, which may include storage areas, feed lines, reaction vessels and ancillary equipment, control equipment, associated laboratories, first aid or medical sections, and waste and effluent handling areas, as necessary to accomplish their inspection; (iii) May visually inspect other parts or areas of the plant site to clarify an ambiguity that has arisen during the inspection; (iv) May take photographs or conduct formal interviews of facility personnel; (v) May examine relevant records; and (vi) May take samples as provided by the Convention, the Act and consistent with the requirements set forth by the Director of the United States National Authority, at 22 CFR part 103, and the facility agreement, if applicable. (2) Scope of consent. When an owner, operator, occupant, or agent in charge of a facility consents to an initial or routine inspection, he or she is consenting to provide access to the Inspection Team and Host Team to any area of the facility, any item located on the facility, interviews with facility personnel, and any records necessary for the Inspection Team to complete its mission pursuant to paragraph (a) of this section, except for information subject to export control under ITAR (22 CFR parts 120 through 130) (see paragraph (b)(3) of this section). When consent is granted for an inspection, the owner, operator, occupant, or agent in charge agrees to provide the same degree of access provided for under section 305 of the Act. The determination of whether the Inspection Team's request to inspect any area, building, item or record is reasonable is the responsibility of the Host Team Leader. (3) ITAR-controlled technology. ITAR-controlled technology shall not be divulged to the Inspection Team without U.S. Government authorization (such technology includes, but is not limited to technical data related to Schedule 1 chemicals or Schedule 2 chemicals identified in Note 2 to Supplement No. 1 to Part 712 or Note 1 to Supplement No. 1 to Part 713, respectively, of the CWCR; also see 22 CFR Section 121.1, i.e., the United States Munitions List). Facilities being inspected are responsible for the identification of ITAR- controlled technology to the BIS Host Team, if known. (c) Pre-inspection briefing. Upon arrival of the Inspection Team and Host Team at the inspection site and before commencement of the inspection, facility representatives will provide the Inspection Team and Host Team with a pre-inspection briefing on the facility, the activities carried out there, safety measures, and administrative and logistical arrangements necessary for the inspection, which may be aided with the use of maps and other [[Page 24957]] documentation as deemed appropriate by the facility. The time spent for the briefing will be limited to the minimum necessary and may not exceed three hours. (1) The pre-inspection briefing will address: (i) Facility health and safety issues and requirements, and associated alarm systems; (ii) Declared facility activities, business and manufacturing operations; (iii) Physical layout; (iv) Delimitation of declared facility; (v) Scheduled chemicals on the facility (declared and undeclared); (vi) Block flow diagram or simplified process flow diagram; (vii) Plants and units specific to declared operations; (viii) Administrative and logistic information; and (ix) Data declaration updates/revisions. (2) The pre-inspection briefing may also address, inter alia: (i) Introduction of key facility personnel; (ii) Management, organization and history; (iii) Confidential business information concerns; (iv) Types and location of records/documents; (v) Draft facility agreement, if applicable; and (vi) Proposed inspection plan. (d) Visual plant inspection. The Inspection Team may visually inspect the declared plant or facility and other areas or parts of the plant site as agreed by the Host Team Leader after consulting with the facility representative. (e) Records review. The facility must provide the Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to comply with the CWCR (see Sec. Sec. 721.1 and 721.2 of the CWCR) and with appropriate accommodations in which the Inspection Team can review these supporting materials and documentation. Such access will be provided in appropriate formats (e.g., paper copies, electronic remote access by computer, microfilm, or microfiche) through the U.S. Government Host Team to Inspection Teams during the inspection period or as otherwise agreed upon by the Inspection Team and Host Team Leader. If a facility does not have access to records for activities that took place under previous ownership, because such records were not transferred to the current owner of the facility by the previous owner (e.g., as part of the contract involving the sale of the facility), the previous owner must make such records available to the Host Team for provision to the Inspection Team in accordance with section 305 of the Act. However, the current owner of a facility, upon receiving notification of an inspection (see Sec. 716.5 of the CWCR), is responsible for informing BIS if the previous owner did not transfer records for activities that took place under the previous ownership--this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities. (f) Effect of facility agreements. Routine inspections at facilities for which the United States has concluded a facility agreement with the OPCW will be conducted in accordance with the facility agreement. The existence of a facility agreement does not in any way limit the right of the owner, operator, occupant, or agent in charge of the facility to withhold consent to an inspection request. (g) Hours of inspections. Consistent with the provisions of the Convention, the Host Team will ensure, to the extent possible, that each inspection is commenced, conducted, and concluded during ordinary working hours, but no inspection shall be prohibited or otherwise disrupted from commencing, continuing or concluding during other hours. (h) Health and safety regulations and requirements. In carrying out their activities, the Inspection Team and Host Team shall observe federal, state, and local health and safety regulations and health and safety requirements established at the inspection site, including those for the protection of controlled environments within a facility and for personal safety. Such health and safety regulations and requirements will be set forth in, but will not necessarily be limited to, the facility agreement, if applicable. (i) Preliminary findings. Upon completion of an inspection, the Inspection Team will meet with the Host Team and facility personnel to review the written preliminary findings of the Inspection Team and to clarify ambiguities. The Host Team will discuss the preliminary findings with the facility, and the Host Team Leader will take into consideration the facility's input when providing official comments on the preliminary findings to the Inspection Team. This meeting will be completed not later than 24 hours after the completion of the inspection. Sec. 716.5 Notification, duration and frequency of inspections. (a) Inspection notification.--(1)(i) Content of notice. Inspections of facilities may be made only upon issuance of written notice by the United States National Authority (USNA) to the owner and to the operator, occupant or agent in charge of the premises to be inspected. BIS will also provide a separate inspection notification to the inspection point of contact identified in declarations submitted by the facility. If the United States is unable to provide actual written notice to the owner and to the operator, occupant or agent in charge, BIS (or the Federal Bureau of Investigation, if BIS is unable) may post notice prominently at the facility to be inspected. The notice shall include all appropriate information provided by the OPCW to the USNA concerning: (A) The type of inspection; (B) The basis for the selection of the facility or location for the type of inspection sought; (C) The time and date that the inspection will begin and the period covered by the inspection; and (D) The names and titles of the Inspection Team members. (ii) Consent to inspection. In addition to appropriate information provided by the OPCW in its notification to the USNA, BIS's inspection notification will request that the facility indicate whether it will consent to an inspection, and will state whether an advance team is available to assist the site in preparation for the inspection. If an advance team is available, facilities that request advance team assistance are not required to reimburse the U.S. Government for costs associated with these activities. If a facility does not agree to provide consent to an inspection within four hours of receipt of the inspection notification, BIS will seek an administrative warrant. The current owner of a facility, upon receiving notification of an inspection, is also responsible for informing BIS if the previous owner did not transfer (to the current owner) records for activities that took place under the previous ownership (see Sec. 716.4(e) of the CWCR)--this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities. (iii) The following table sets forth the notification procedures for inspection: [[Page 24958]] Table to Sec. 716.5(a)(1) ------------------------------------------------------------------------ Activity Agency action Facility action ------------------------------------------------------------------------ (A) OPCW notification (1) U.S. National Acknowledges receipt inspection. Authority transmits of facsimile. actual written notice and inspection authorization to the owner and operator, occupant, or agent in charge via facsimile within 6 hours. (2) Upon (A) Indicated notification from whether it grants the U.S. National consent. Authority, BIS (B) May request immediately advance team transmits support. No inspection requirement for notification via reimbursement of facsimile to the U.S. Government's inspection point of services. contract to ascertain whether the facility (i) grants consent and (ii) requests assistance in preparing for the inspection. In absence of consent within four hours of facility receipt, BIS intends to seek an administrative warrant. (B) Preparation for (1) BIS advance team If advance team inspection. generally arrives support is in the vicinity of provided, facility the facility to be works with the inspected 1-2 days advance team on after OPCW inspection-related notification for issues. logistical and administrative preparations. (2) If records for The current owner of activities that the facility must took place under inform BIS if the the previous previous owner of ownership of the the facility did facility are deemed not transfer (to relevant to the the current owner) inspection, BIS records for will contact the activities that previous owner of took place under the facility to the previous arrange for access ownership. to any such records required under the CWCR that have not been transferred to the current owner. ------------------------------------------------------------------------ (2) Timing of notice.--(i) Schedule 1 facilities. For declared Schedule 1 facilities, the Technical Secretariat will notify the USNA of an initial inspection not less than 72 hours prior to arrival of the Inspection Team in the United States, and will notify the USNA of a routine inspection not less than 24 hours prior to arrival of the Inspection Team in the United States. The USNA will provide written notice to the owner and to the operator, occupant or agent in charge of the premises within six hours of receiving notification from the OPCW Technical Secretariat or as soon as possible thereafter. BIS will provide Host Team notice to the inspection point of contact of the facility as soon as possible after the OPCW notifies the USNA of the inspection. (ii) Schedule 2 plant sites. For declared Schedule 2 plant sites, the Technical Secretariat will notify the USNA of an initial or routine inspection not less than 48 hours prior to arrival of the Inspection Team at the plant site to be inspected. The USNA will provide written notice to the owner and to the operator, occupant or agent in charge of the premises within six hours of receiving notification from the OPCW Technical Secretariat or as soon as possible thereafter. BIS will provide Host Team notice to the inspection point of contact at the plant site as soon as possible after the OPCW notifies the USNA of the inspection. (iii) Schedule 3 and UDOC plant sites. For declared Schedule 3 and UDOC plant sites, the Technical Secretariat will notify the USNA of a routine inspection not less than 120 hours prior to arrival of the Inspection Team at the plant site to be inspected. The USNA will provide written notice to the owner and to the operator, occupant or agent in charge of the premises within six hours of receiving notification from the OPCW Technical Secretariat or as soon as possible thereafter. BIS will provide Host Team notice to the inspection point of contact of the plant site as soon as possible after the OPCW notifies the USNA of the inspection. (b) Period of inspections.--(1) Schedule 1 facilities. For a declared Schedule 1 facility, the Convention does not specify a maximum duration for an initial inspection. The estimated period of routine inspections will be as stated in the facility agreement, unless extended by agreement between the Inspection Team and the Host Team Leader, and will be based on the risk to the object and purpose of the Convention posed by the quantities of chemicals produced, the characteristics of the facility and the nature of the activities carried out there. The Host Team Leader will consult with the inspected facility on any request for extension of an inspection prior to making an agreement with the Inspection Team. Activities involving the pre- inspection briefing and preliminary findings are in addition to inspection activities. See Sec. 716.4(c) and (i) of the CWCR for a description of these activities. (2) Schedule 2 plant sites. For declared Schedule 2 plant sites, the maximum duration of initial and routine inspections shall be 96 hours, unless extended by agreement between the Inspection Team and the Host Team Leader. The Host Team Leader will consult with the inspected plant site on any request for extension of an inspection prior to making an agreement with the Inspection Team. Activities involving the pre-inspection briefing and preliminary findings are in addition to inspection activities. See Sec. 716.4(c) and (i) of the CWCR for a description of these activities. (3) Schedule 3 and UDOC plant sites. For declared Schedule 3 or UDOC plant sites, the maximum duration of routine inspections shall be 24 hours, unless extended by agreement between the Inspection Team and the Host Team Leader. The Host Team Leader will consult with the inspected plant site on any request for extension of an inspection prior to making an agreement with the Inspection Team. Activities involving the pre-inspection briefing and preliminary findings are in addition to inspection activities. See Sec. 716.4(c) and (i) of the CWCR for a description of these activities. (c) Frequency of inspections. The frequency of inspections is as follows: (1) Schedule 1 facilities. As provided by the Convention, the frequency of inspections at declared Schedule 1 facilities is determined by the OPCW based on the risk to the object and purpose of the Convention posed by the [[Page 24959]] quantities of chemicals produced, the characteristics of the facility and the nature of the activities carried out at the facility. The frequency of inspections will be stated in the facility agreement. (2) Schedule 2 plant sites. As provided by the Convention and the Act, the maximum number of inspections at declared Schedule 2 plant sites is two per calendar year per plant site. The OPCW will determine the frequency of routine inspections for each declared Schedule 2 plant site based on the Inspection Team's assessment of the risk to the object and purpose of the Convention posed by the relevant chemicals, the characteristics of the plant site, and the nature of the activities carried out there. The frequency of inspections will be stated in the facility agreement, if applicable. (3) Schedule 3 plant sites. As provided by the Convention, no declared Schedule 3 plant site may receive more than two inspections per calendar year and the combined number of inspections of Schedule 3 and UDOC plant sites in the United States may not exceed 20 per calendar year. (4) UDOC plant sites. As provided by the Convention, no declared UDOC plant site may receive more than two inspections per calendar year and the combined number of inspections of Schedule 3 and UDOC plant sites in the United States may not exceed 20 per calendar year. Sec. 716.6 Facility agreements. (a) Description and requirements. A facility agreement is a site- specific agreement between the U.S. Government and the OPCW. Its purpose is to define procedures for inspections of a specific declared facility that is subject to inspection because of the type or amount of chemicals it produces, processes or consumes. (1) Schedule 1 facilities. The Convention requires that facility agreements be concluded between the United States and the OPCW for all declared Schedule 1 facilities. For new Schedule 1 production facilities declared pursuant to Sec. 712.4 of the CWCR, the USNA, in coordination with the Department of Commerce, will conclude a facility agreement with the OPCW before the facility begins producing above 100 grams aggregate of Schedule 1 chemicals. (2) Schedule 2 plant sites. The USNA will ensure that such facility agreements are concluded with the OPCW unless the owner, operator, occupant or agent in charge of the plant site and the OPCW Technical Secretariat agree that such a facility agreement is not necessary. (3) Schedule 3 and UDOC plant sites. If the owner, operator, occupant or agent in charge of a declared Schedule 3 or UDOC plant site requests a facility agreement, the USNA will ensure that a facility agreement for such a plant site is concluded with the OPCW. (b) Notification; negotiation of draft and final facility agreements; and conclusion of facility agreements. Prior to the development of a facility agreement, BIS shall notify the owner, operator, occupant, or agent in charge of the facility, and if the owner, operator, occupant or agent in charge so requests, the notified person may participate in preparations with BIS representatives for the negotiation of such an agreement. During the initial or routine inspection of a declared facility, the Inspection Team and the Host Team will negotiate a draft facility agreement or amendment to a facility agreement. To the maximum extent practicable consistent with the Convention, the owner and the operator, occupant or agent in charge of the facility may observe facility agreement negotiations between the U.S. Government and OPCW. As a general rule, BIS will consult with the affected facility on the contents of the agreements and take the facility's views into consideration during negotiations. BIS will participate in the negotiation of, and approve, all final facility agreements with the OPCW. Facilities will be notified of and have the right to observe final facility agreement negotiations between the United States and the OPCW to the maximum extent practicable, consistent with the Convention. Prior to the conclusion of a final facility agreement, the affected facility will have an opportunity to comment on the facility agreement. BIS will give consideration to such comments prior to approving final facility agreements with the OPCW. The USNA shall ensure that facility agreements for Schedule 1, Schedule 2, Schedule 3 and UDOC facilities are concluded, as appropriate, with the OPCW in coordination with BIS. (c) [Reserved] (d) Further information. For further information about facility agreements, please write or call: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, 1555 Wilson Boulevard, Suite 700, Arlington, VA 22209, Telephone: (703) 605-4400. Sec. 716.7 Samples. The owner, operator, occupant or agent in charge of a facility must provide a sample as provided for in the Convention and the Act and consistent with requirements set forth by the Director of the United States National Authority in 22 CFR part 103. Analysis will be restricted to verifying the absence of undeclared scheduled chemicals, unless otherwise agreed after consultation with the facility representative. Sec. 716.8 On-site monitoring of Schedule 1 facilities. Declared Schedule 1 facilities are subject to verification by monitoring with on-site instruments as provided by the Convention. For facilities subject to the CWCR, however, such monitoring is not anticipated. The U.S. Government will ensure that any monitoring that may be requested by the OPCW is carried out pursuant to the Convention and U.S. law. Sec. 716.9 Report of inspection-related costs. Pursuant to section 309(b)(5) of the Act, any facility that has undergone any inspections pursuant to the CWCR during a given calendar year must report to BIS within 90 days of an inspection on its total costs related to that inspection. Although not required, such reports should identify categories of costs separately if possible, such as personnel costs (production-line, administrative, legal), costs of producing records, and costs associated with shutting down chemical production or processing during inspections, if applicable. This information should be reported to BIS on company letterhead at the address given in Sec. 716.6(d) of the CWCR, with the following notation: ``Attn: Report of inspection-related costs.'' Sec. 716.10 Post-inspection activities. BIS will forward a copy of the final inspection report to the inspected facility for their review upon receipt from the OPCW. Facilities may submit comments on the final inspection report to BIS, within the time-frame specified by BIS (i.e., at least 7 working days from receipt of the report), and BIS will consider them, to the extent possible, when commenting on the final report. BIS will also send facilities a post-inspection letter detailing the issues that require follow-up action, e.g., amended declaration requirement (see Sec. Sec. 712.7(d), 713.5(d), 714.4(d), and 715.2(c) of the CWCR), information on the status of the draft facility agreement, if applicable, and the date on which the report on inspection-related costs (see Sec. 716.9 of the CWCR) is due to BIS. ?> [[Page 24960]] Supplement No. 1 to Part 716.--Notification, Duration and Frequency of Inspections ---------------------------------------------------------------------------------------------------------------- Unscheduled Schedule 1 Schedule 2 Schedule 3 discrete organic chemicals ---------------------------------------------------------------------------------------------------------------- Notice of initial or routine 72 hours prior to 48 hours prior to 120 hours prior to 120 hours prior to inspection to USNA. arrival of arrival of arrival of arrival of Inspection Team Inspection Team Inspection Team Inspection Team at the point of at the plant site. at the plant site. at the plant entry (initial); site. 24 hours prior to arrival of Inspection Team at the point of entry (routine). Duration of inspection.......... As specified in 96 hours.......... 24 hours.......... 24 hours. facility agreement. Maximum number of inspections... Determined by OPCW 2 per calendar 2 per calendar 2 per calendar based on year per plant year per plant year per plant characteristics site. site. site. of facility and the nature of the activities carried out at the facility. ------------------------------------------------------------------------------- Notification of challenge 12 hours prior to arrival of inspection team at the point of entry. inspection to USNA*. Duration of Challenge 84 hours. inspection*. ---------------------------------------------------------------------------------------------------------------- * See part 717 of the CWCR. Supplement Nos. 2-3 to Part 716 [Reserved] PART 717--CWC CLARIFICATION PROCEDURES (CONSULTATIONS AND CHALLENGE INSPECTIONS) Sec. 717.1 Clarification procedures; challenge inspection requests pursuant to Article IX of the Convention. 717.2 Challenge inspections. 717.3 Samples. 717.4 Report of inspection-related costs. 717.5 Post-inspection activities. Authority: 22 U.S.C. 6701 et seq., 2681; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 717.1 Clarification procedures; challenge inspection requests pursuant to Article IX of the Convention. (a) Article IX of the Convention sets forth procedures for clarification, between States Parties, of issues about compliance with the Convention. States Parties may attempt to resolve such issues through consultation between themselves or through the Organization for the Prohibition of Chemical Weapons (OPCW). A State Party may also request the OPCW to conduct an on-site challenge inspection of any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party. Such an on-site challenge inspection request shall be for the sole purpose of clarifying and resolving any questions concerning possible non- compliance with the Convention. (b) In the event that BIS receives a request for clarification, pursuant to Article IX of the Convention, concerning possible non- compliance with the CWC, any person or facility subject to the CWCR (parts 710 through 729 of this subchapter) that receives an official written request from BIS for clarification must, within five working days from receipt of such request, provide BIS with any relevant information required to respond to the OPCW or the State Party(ies) who requested clarification under Article IX. BIS will contact the person or facility subject to the Article IX clarification, as early as practicable, prior to issuing an official written request for clarification to the person or facility. Sec. 717.2 Challenge inspections. Persons or facilities, other than U.S. Government facilities as defined in Sec. 710.2(a) of the CWCR, may be subject to a challenge inspection by the OPCW concerning possible non-compliance with the requirements of the Convention, irrespective of whether or not they are required to submit declarations or reports under the CWCR. BIS will host and escort the international Inspection Team for challenge inspections in the United States of such persons or facilities. (a) Consent to challenge inspections; warrants for challenge inspections. (1) The owner, operator, occupant or agent in charge of a facility may consent to a challenge inspection. The individual giving consent on behalf of the facility represents that he or she has the authority to make this decision for the facility. The facility must respond to the notice of inspection, which includes within it a request for consent to the inspection, within four hours of the facility's receipt of the notice of inspection from BIS. (2) In instances where the owner, operator, occupant or agent in charge of a facility does not consent to a challenge inspection, BIS will assist the Department of Justice in seeking a criminal warrant as provided by the Act. The existence of a facility agreement does not in any way limit the right of the operator of the facility to withhold consent to a challenge inspection request. (b) Notice of challenge inspection. Challenge inspections may be made only upon issuance of written notice by the United States National Authority (USNA) to the owner and to the operator, occupant or agent in charge of the premises. BIS will provide notice of inspection to the inspection point of contact at such time that a person or facility has been clearly established, if possible, and when notification is deemed appropriate. If the United States is unable to provide actual written notice to the owner and to the operator, occupant or agent in charge, BIS (or another appropriate agency, if BIS is unable) may post notice prominently at the plant, plant site or other facility or location to be inspected. (1) Timing. The OPCW will notify the USNA of a challenge inspection not less than 12 hours before the planned arrival of the Inspection Team at the U.S. point of entry. Written notice will be provided to the owner and to the operator, occupant, or agent in charge of the premises at any appropriate time determined by the USNA after receipt of notification from the OPCW Technical Secretariat. (2)(i) Content of notice. The notice of inspection shall include all appropriate information provided by the OPCW to the United States National Authority concerning: [[Page 24961]] (A) The type of inspection; (B) The basis for the selection of the facility or locations for the type of inspection sought; (C) The time and date that the inspection will begin and the period covered by the inspection; (D) The names and titles of the Inspection Team members; and (E) All appropriate evidence or reasons provided by the requesting State Party for seeking the inspection. (ii) In addition to appropriate information provided by the OPCW in its notification to the USNA, the notice of inspection that BIS delivers to the facility will request the facility to indicate whether it will consent to an inspection and will state whether an advance team is available to assist the site in preparation for the inspection. If an advance team is available, facilities that request advance team assistance are not required to reimburse the U.S. Government for costs associated with these activities. If a facility does not agree to provide consent to an inspection within four hours of receipt of the inspection notification, BIS will assist the Department of Justice in seeking a criminal warrant. (c) Period of inspection. Challenge inspections will not exceed 84 hours, unless extended by agreement between the Inspection Team and the Host Team Leader. (d) Scope and conduct of inspections--(1) General. Each inspection shall be limited to the purposes described in this section and conducted in the least intrusive manner, consistent with the effective and timely accomplishment of its purpose as provided in the Convention. (2) Scope of inspections. If an owner, operator, occupant, or agent in charge of a facility consents to a challenge inspection, the inspection will be conducted under the authority of the Act and in accordance with the provisions of Article IX and applicable provisions of the Verification Annex of the Convention. If consent is not granted, the inspection will be conducted pursuant to the terms of a criminal warrant issued under the authority of the Act. (3) Hours of inspections. Consistent with the provisions of the Convention, the Host Team will ensure, to the extent possible, that each inspection is commenced, conducted, and concluded during ordinary working hours, but no inspection shall be prohibited or otherwise disrupted from commencing, continuing or concluding during other hours. (4) Health and safety regulations and requirements. In carrying out their activities, the Inspection Team and Host Team shall observe federal, state, and local health and safety regulations and health and safety requirements established at the inspection site, including those for the protection of controlled environments within a facility and for personal safety. (5) Pre-inspection briefing. Upon arrival of the Inspection Team and the Host Team in the vicinity of the inspection site and before commencement of the inspection, facility representatives will provide the Inspection Team and the Host Team with a pre-inspection briefing concerning the facility, the activities carried out there, safety measures, and administrative and logistical arrangements necessary for the inspection, which may be aided with the use of maps and other documentation as deemed appropriate by the facility. The time spent for the briefing may not exceed three hours. Sec. 717.3 Samples. If requested by the Inspection Team, the owner, operator, occupant or agent in charge of a facility must provide a sample, as provided for in the Convention and the Act and consistent with requirements set forth by the Director of the United States National Authority in 22 CFR part 103. This may be done by providing a sample, taken in the presence of the Inspection Team, to the U.S. Host Team leader, who will then release it to the Inspection Team for analysis. Analysis of the sample may be restricted to verifying the presence or absence of Schedule 1, 2, or 3 chemicals, or appropriate degradation products, unless agreed otherwise. Sec. 717.4 Report of inspection-related costs. Pursuant to section 309(b)(5) of the Act, any facility that has undergone any inspections pursuant to the CWCR during a given calendar year must report to BIS within 90 days of an inspection on its total costs related to that inspection. Although not required, such reports should identify categories of costs separately if possible, such as personnel costs (production-line, administrative, legal), costs of producing records, and costs associated with shutting down chemical production or processing during inspections, if applicable. This information should be reported to BIS on company letterhead at the address given in Sec. 716.6(d) of the CWCR, with the following notation: ``AATTN: Report of Inspection-related Costs.'' Sec. 717.5 Post-inspection activities. BIS will forward a copy of the final inspection report to the inspected facility for their review upon receipt from the OPCW. Facilities may submit comments on the final inspection report to BIS, and BIS will consider them, to the extent possible, when commenting on the final report. BIS will also send facilities a post-inspection letter detailing the issues that require follow-up action and the date on which the report on inspection-related costs (see Sec. 717.4 of the CWCR) is due to BIS. PART 718--CONFIDENTIAL BUSINESS INFORMATION Sec. 718.1 Definition. 718.2 Identification of confidential business information. 718.3 Disclosure of confidential business information. Supplement No. 1 to Part 718--Confidential Business Information Declared or Reported Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 718.1 Definition. The Chemical Weapons Convention Implementation Act of 1998 (``the Act'') defines confidential business information as information included in categories specifically identified in sections 103(g)(1) and 304(e)(2) of the Act and other trade secrets as follows: (a) Financial data; (b) Sales and marketing data (other than shipment data); (c) Pricing data; (d) Personnel data; (e) Research data; (f) Patent data; (g) Data maintained for compliance with environmental or occupational health and safety regulations; (h) Data on personnel and vehicles entering and personnel and personal passenger vehicles exiting the site; (i) Any chemical structure; (j) Any plant design, process, technology or operating method; (k) Any operating requirement, input, or result that identifies any type or quantity of chemicals used, processed or produced; (l) Any commercial sale, shipment or use of a chemical; or (m) Information that qualifies as a trade secret under 5 U.S.C. 552(b)(4) (Freedom of Information Act), provided such trade secret is obtained from a U.S. person or through the U.S. Government. 718.2 Identification of confidential business information. (a) General. Certain confidential business information submitted to BIS [[Page 24962]] in declarations and reports does not need to be specifically identified and marked by the submitter, as described in paragraph (b) of this section. Other confidential business information submitted to BIS in declarations and reports and confidential business information provided to the Host Team during inspections must be identified by the inspected facility so that the Host Team can arrange appropriate marking and handling. (b) Confidential business information contained in declarations and reports. (1) BIS has identified those data fields on the declaration and report forms that request ``confidential business information'' as defined by the Act. These data fields are identified in the table provided in Supplement No. 1 to this part. (2) You must specifically identify in a cover letter submitted with your declaration or report any additional information on a declaration or report form (i.e., information not provided in one of the data fields listed in the table included in Supplement No. 1 to this part), including information provided in attachments to Form A or Form B, that you believe is confidential business information, as defined by the Act, and must describe how disclosure would likely result in competitive harm. Note to Sec. 718.2(b): BIS has also determined that descriptions of Schedule 1 facilities submitted with Initial Declarations as attachments to Form A contain confidential business information, as defined by the Act. (c) Confidential business information contained in advance notifications. Information contained in advance notifications of exports and imports of Schedule 1 chemicals is not subject to the confidential business information provisions of the Act. You must identify information in your advance notifications of Schedule 1 imports that you consider to be privileged and confidential, and describe how disclosure would likely result in competitive harm. See Sec. 718.3(b) of the CWCR for provisions on disclosure to the public of such information by the U.S. Government. (d) Confidential business information related to inspections disclosed to, reported to, or otherwise acquired by, the U.S. Government. (1) During inspections, certain confidential business information, as defined by the Act, may be disclosed to the Host Team. Facilities being inspected are responsible for identifying confidential business information to the Host Team, so that if it is disclosed to the Inspection Team, appropriate marking and handling can be arranged, in accordance with the provisions of the Convention (see Sec. 718.3(c)(1)(ii) of the CWCR). Confidential business information not related to the purpose of an inspection or not necessary for the accomplishment of an inspection, as determined by the Host Team, may be removed from sight, shrouded, or otherwise not disclosed. (2) Before or after inspections, confidential business information related to an inspection that is contained in any documents or that is reported to, or otherwise acquired by, the U.S. Government, such as facility information for pre-inspection briefings, facility agreements, and inspection reports, must be identified by the facility so that it may be appropriately marked and handled. If the U.S. Government creates derivative documents from such documents or reported information, they will also be marked and handled as confidential business information. Sec. 718.3 Disclosure of confidential business information. (a) General. Confidentiality of information will be maintained by BIS consistent with the non-disclosure provisions of the Act, the Export Administration Regulations (15 CFR parts 730 through 799), the International Traffic in Arms Regulations (22 CFR parts 120 through 130), and applicable exemptions under the Freedom of Information Act, as appropriate. (b) Disclosure of confidential business information contained in advance notifications. Information contained in advance notifications of exports and imports of Schedule 1 chemicals is not subject to the confidential business information provisions of the Act. Disclosure of such information will be in accordance with the provisions of the relevant statutory and regulatory authorities as follows: (1) Exports of Schedule 1 chemicals. Confidentiality of all information contained in these advance notifications will be maintained consistent with the non-disclosure provisions of the Export Administration Regulations (15 CFR parts 730 through 799), the International Traffic in Arms Regulations (22 CFR parts 120 through 130), and applicable exemptions under the Freedom of Information Act, as appropriate; and (2) Imports of Schedule 1 chemicals. Confidentiality of information contained in these advance notifications will be maintained pursuant to applicable exemptions under the Freedom of Information Act. (c) Disclosure of confidential business information pursuant to Sec. 404(b) of the Act--(1) Disclosure to the Organization for the Prohibition of Chemical Weapons (OPCW). (i) As provided by Section 404(b)(1) of the Act, the U.S. Government will disclose or otherwise provide confidential business information to the Technical Secretariat of the OPCW or to other States Parties to the Convention, in accordance with provisions of the Convention, particularly with the provisions of the Annex on the Protection of Confidential Information (Confidentiality Annex). (ii) Convention provisions. (A) The Convention provides that States Parties may designate information submitted to the Technical Secretariat as confidential, and requires the OPCW to limit access to, and prevent disclosure of, information so designated, except that the OPCW may disclose certain confidential information submitted in declarations to other States Parties if requested. The OPCW has developed a classification system whereby States Parties may designate the information they submit in their declarations as ``restricted,'' ``protected,'' or ``highly protected,'' depending on the sensitivity of the information. Other States Parties are obligated, under the Convention, to store and restrict access to information which they receive from the OPCW in accordance with the level of confidentiality established for that information. (B) The OPCW Inspection Team members are prohibited, under the terms of their employment contracts and pursuant to the Confidentiality Annex of the Convention, from disclosing to any unauthorized persons, during their employment and for five years after termination of their employment, any confidential information coming to their knowledge or into their possession in the performance of their official duties. (iii) U.S. Government designation of information to the Technical Secretariat. It is the policy of the U.S. Government to designate all facility information it provides to the Technical Secretariat in declarations, reports and Schedule 1 advance notifications as ``protected.'' It is the policy of the U.S. Government to designate confidential business information that it discloses to Inspection Teams during inspections as ``protected'' or ``highly protected,'' depending on the sensitivity of the information. The Technical Secretariat is responsible for storing and limiting access to any confidential business information contained in a document according to its established procedures. (2) Disclosure to Congress. Section 404(b)(2) of the Act provides that the U.S. Government must disclose confidential business information to any committee or subcommittee of Congress with appropriate jurisdiction upon the [[Page 24963]] written request of the chairman or ranking minority member of such committee or subcommittee. No such committee or subcommittee, and no member and no staff member of such committee or subcommittee, may disclose such information or material except as otherwise required or authorized by law. (3) Disclosure to other Federal agencies for law enforcement actions and disclosure in enforcement proceedings under the Act. Section 404(b)(3) of the Act provides that the U.S. Government must disclose confidential business information to other Federal agencies for enforcement of the Act or any other law, and must disclose such information when relevant in any proceeding under the Act. Disclosure will be made in such manner as to preserve confidentiality to the extent practicable without impairing the proceeding. Section 719.14(b) of the CWCR provides that all hearings will be closed, unless the Administrative Law Judge for good cause shown determines otherwise. Section 719.20 of the CWCR provides that parties may request that the administrative law judge segregate and restrict access to confidential business information contained in material in the record of an enforcement proceeding. (4) Disclosure to the public; national interest determination. Section 404(c) of the Act provides that confidential business information, as defined by the Act, that is in the possession of the U.S. Government, is exempt from public disclosure in response to a Freedom of Information Act request, except when such disclosure is determined to be in the national interest. (i) National interest determination. The United States National Authority (USNA), in coordination with the CWC interagency group, shall determine on a case-by-case basis if disclosure of confidential business information in response to a Freedom of Information Act request is in the national interest. (ii) Notification of intent to disclose pursuant to a national interest determination. The Act provides for notification to the affected person of intent to disclose confidential business information based on the national interest, unless such notification of intent to disclose is contrary to national security or law enforcement needs. If, after coordination with the agencies that constitute the CWC interagency group, the USNA does not determine that such notification of intent to disclose is contrary to national security or law enforcement needs, the USNA will notify the person that submitted the information and the person to whom the information pertains of the intent to disclose the information. Supplement No. 1 to Part 718.--Confidential Business Information Declared or Reported * ------------------------------------------------------------------------ Fields containing confidential business information ------------------------------------------------------------------------ Schedule 1 Forms: Certification Form...................... NONE. Form 1-1................................ NONE. Form 1-2................................ All fields. Form 1-2A............................... All fields. Form 1-2B............................... All fields. Form 1-3................................ All fields. Form 1-4................................ All fields. Schedule 2 Forms: Certification Form...................... NONE. Form 2-1................................ NONE. Form 2-2................................ Question 2-2.9 Form 2-3................................ All fields. Form 2-3A............................... All fields. Form 2-3B............................... All fields. Form 2-3C............................... All fields. Form 2-4................................ All fields. Schedule 3 Forms: Certification Form...................... NONE. Form 3-1................................ NONE. Form 3-2................................ NONE. Form 3-3................................ All fields. Form 3-4................................ All fields. Unscheduled Discrete Organic Chemicals Forms: Certification Form...................... NONE. Form UDOC............................... NONE. FORMS A and B and attachments (all Case-by-case; must be Schedules and UDOCs). identified by submitter. ------------------------------------------------------------------------ * This table lists those data fields on the Declaration and Report Forms that request ``confidential business information'' (CBI) as defined by the Act (sections 103(g) and 304(e)(2)). As provided by section 404(a) of the Act, CBI is exempt from disclosure in response to a Freedom of Information Act (FOIA) request under sections 552(b)(3) and 552(b)(4) (5 U.S.C.A. 552(b)(3)-(4)), unless a determination is made, pursuant to section 404(c) of the Act, that such disclosure is in the national interest. Other FOIA exemptions to disclosure may also apply. You must identify CBI provided in Form A and/or Form B attachments, and provide the reasons supporting your claim of confidentiality, except that Schedule 1 facility technical descriptions submitted with initial declarations are always considered to include CBI. If you believe that information you are submitting in a data field marked ``none'' in the Table is CBI, as defined by the Act, you must identify the specific information and provide the reasons supporting your claim of confidentiality in a cover letter. PART 719--ENFORCEMENT Sec. 719.1 Scope and definitions. 719.2 Violations of the Act subject to administrative and criminal enforcement proceedings. 719.3 Violations of the IEEPA subject to judicial enforcement proceedings. 719.4 Violations and sanctions under the Act not subject to proceedings under the CWCR. 719.5 Initiation of administrative proceedings. 719.6 Request for hearing and answer. 719.7 Representation. 719.8 Filing and service of papers other than the NOVA. 719.9 Summary decision. 719.10 Discovery. 719.11 Subpoenas. 719.12 Matters protected against disclosure. 719.13 Prehearing conference. 719.14 Hearings. 719.15 Procedural stipulations. 719.16 Extension of time. 719.17 Post-hearing submissions. 719.18 Decisions. 719.19 Settlement. 719.20 Record for decision. 719.21 Payment of final assessment. 719.22 Reporting a violation. Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR 1994, Comp., p. 950; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 719.1 Scope and definitions. (a) Scope. This part 719 describes the various sanctions that apply to violations of the Act and the CWCR. It also establishes detailed administrative procedures for certain violations of the Act. The three categories of violations are as follows: (1) Violations of the Act subject to administrative and criminal enforcement proceedings. Section 719.2 of the CWCR sets forth violations for which the statutory basis is the Act. BIS investigates these violations and, for administrative proceedings, prepares charges, provides legal representation to the U.S. Government, negotiates settlements, and makes recommendations to officials of the Department of State with respect to the initiation and resolution of proceedings. The administrative procedures applicable to these violations are found in Sec. Sec. 719.5 through 719.22 of the CWCR. The Department of State gives notice of initiation of administrative proceedings and issues orders imposing penalties pursuant to 22 CFR part 103, subpart C. (2) Violations of the International Emergency Economic Powers Act (IEEPA) subject to judicial enforcement proceedings. Section 719.3 of the CWCR sets forth violations of the Chemical Weapons Convention for which the statutory basis is the IEEPA. BIS refers these violations to the Department of Justice for civil or criminal judicial enforcement. (3) Violations and sanctions under the Act not subject to proceedings under the CWCR. Section 719.4 of the CWCR sets forth violations and sanctions under the [[Page 24964]] Act that are not violations of the CWCR and that are not subject to proceedings under the CWCR. This section is included solely for informational purposes. BIS may assist in investigations of these violations, but has no authority to initiate any enforcement action under the CWCR. Note to Sec. 719.1(a): This part 719 does not apply to violations of the export requirements imposed pursuant to the Chemical Weapons Convention and set forth in the Export Administration Regulations (EAR) (15 CFR parts 730 through 799) and in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130). (b) Definitions. The following are definitions of terms as used only in parts 719 and 720 of the CWCR. For definitions of terms applicable to parts 710 through 718 and parts 721 and 722 of the CWCR, see part 710 of the CWCR. Act (The). The Chemical Weapons Convention Implementation Act of 1998 (22 U.S.C. 6701-6777). Assistant Secretary for Export Enforcement. The Assistant Secretary for Export Enforcement, Bureau of Industry and Security, United States Department of Commerce. Final decision. A decision or order assessing a civil penalty, or otherwise disposing of or dismissing a case, which is not subject to further administrative review, but which may be subject to collection proceedings or judicial review in an appropriate Federal court as authorized by law. IEEPA. The International Emergency Economic Powers Act, as amended (50 U.S.C. 1701-1706). Office of Chief Counsel. The Office of Chief Counsel for Industry and Security, United States Department of Commerce. Report. For purposes of parts 719 and 720 of the CWCR, the term ``report'' means any declaration, report, or advance notification required under parts 712 through 715 of the CWCR. Respondent. Any person named as the subject of a letter of intent to charge, or a Notice of Violation and Assessment (NOVA) and proposed order. Under Secretary, Bureau of Industry and Security. The Under Secretary, Bureau of Industry and Security, United States Department of Commerce. Sec. 719.2 Violations of the Act subject to administrative and criminal enforcement proceedings. (a) Violations.--(1) Refusal to permit entry or inspection. No person may willfully fail or refuse to permit entry or inspection, or disrupt, delay or otherwise impede an inspection, authorized by the Act. (2) Failure to establish or maintain records. No person may willfully fail or refuse: (i) To establish or maintain any record required by the Act or the CWCR; or (ii) To submit any report, notice, or other information to the United States Government in accordance with the Act or the CWCR; or (iii) To permit access to or copying of any record required to be established or maintained by the Act or the CWCR, including any record that is exempt from disclosure under the Act or the CWCR. (b) Civil penalties.--(1) Civil penalty for refusal to permit entry or inspection. Any person that is determined to have willfully failed or refused to permit entry or inspection, or to have disrupted, delayed or otherwise impeded an authorized inspection, as set forth in paragraph (a)(1) of this section, shall pay a civil penalty in an amount not to exceed $25,000 for each violation. Each day the violation continues constitutes a separate violation. (2) Civil penalty for failure to establish or maintain records. Any person that is determined to have willfully failed or refused to establish or maintain any record or submit any report, notice, or other information required by the Act or the CWCR, or to have willfully failed or refused to permit access to or copying of any record, including any record exempt from disclosure under the Act or the CWCR as set forth in paragraph (a)(2) of this section, shall pay a civil penalty in an amount not to exceed $5,000 for each violation. (c) Criminal penalty. Any person that knowingly violates the Act by willfully failing or refusing to permit entry or inspection authorized by the Act; or by willfully disrupting, delaying or otherwise impeding an inspection authorized by the Act; or by willfully failing or refusing to establish or maintain any required record, or to submit any required report, notice, or other information; or by willfully failing or refusing to permit access to or copying of any record, including records exempt from disclosure under the Act or the CWCR, shall, in addition to or in lieu of any civil penalty that may be imposed, be fined under Title 18 of the United States Code, be imprisoned for not more than one year, or both. (d) Denial of export privileges. Any person in the United States or any U.S. national may be subject to a denial of export privileges after notice and opportunity for hearing pursuant to part 720 of the CWCR if that person has been convicted under Title 18, section 229 of the United States Code. Sec. 719.3 Violations of the IEEPA subject to judicial enforcement proceedings. (a) Violations.--(1) Import restrictions involving Schedule 1 chemicals. Except as otherwise provided in Sec. 712.2 of the CWCR, no person may import any Schedule 1 chemical (See Supplement No. 1 to part 712 of the CWCR) unless: (i) The import is from a State Party; (ii) The import is for research, medical, pharmaceutical, or protective purposes; (iii) The import is in types and quantities strictly limited to those that can be justified for such purposes; and (iv) The importing person has notified BIS not less than 45 calendar days before the import pursuant to Sec. 712.6 of the CWCR. (2) Import restrictions involving Schedule 2 chemicals. Except as otherwise provided in Sec. 713.1 of the CWCR, no person may, on or after April 29, 2000, import any Schedule 2 chemical (see Supplement No. 1 to part 713 of the CWCR) from any destination other than a State Party. (b) Civil penalty. A civil penalty not to exceed $11,000 may be imposed in accordance with this part on any person for each violation of this section.\1\ --------------------------------------------------------------------------- \1\ The maximum civil penalty allowed under the International Emergency Economic Powers Act is $11,000 for any violation committed on or after October 23, 1996 (15 CFR 6.4(a)(3)). --------------------------------------------------------------------------- (c) Criminal penalty. Whoever willfully violates paragraph (a)(1) or (2) of this section shall, upon conviction, be fined not more than $50,000, or, if a natural person, imprisoned for not more than ten years, or both; and any officer, director, or agent of any corporation who knowingly participates in such violation may be punished by like fine, imprisonment, or both.\2\ --------------------------------------------------------------------------- \2\ Alternatively, sanctions may be imposed under 18 U.S.C. 3571, a criminal code provision that establishes a maximum criminal fine for a felony that is the greatest of: (1) The amount provided by the statute that was violated; (2) an amount not more than $250,000 for an individual, or not more than $500,000 for an organization; or (3) an amount based on gain or loss from the offense. --------------------------------------------------------------------------- Sec. 719.4 Violations and sanctions under the Act not subject to proceedings under the CWCR. (a) Criminal penalties for development or use of a chemical weapon. Any person who violates 18 U.S.C. 229 shall be fined, or imprisoned for any term of years, or both. Any person who violates 18 U.S.C. 229 and by whose action the death of another person is the result shall be punished by death or imprisoned for life. (b) Civil penalty for development or use of a chemical weapon. The Attorney [[Page 24965]] General may bring a civil action in the appropriate United States district court against any person who violates 18 U.S.C. 229 and, upon proof of such violation by a preponderance of the evidence, such person shall be subject to pay a civil penalty in an amount not to exceed $100,000 for each such violation. (c) Criminal forfeiture. (1) Any person convicted under section 229A(a) of Title 18 of the United States Code shall forfeit to the United States irrespective of any provision of State law: (i) Any property, real or personal, owned, possessed, or used by a person involved in the offense; (ii) Any property constituting, or derived from, and proceeds the person obtained, directly or indirectly, as the result of such violation; and (iii) Any of the property used in any manner or part, to commit, or to facilitate the commission of, such violation. (2) In lieu of a fine otherwise authorized by section 229A(a) of Title 18 of the United States Code, a defendant who derived profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds. (d) Injunction. (1) The United States may, in a civil action, obtain an injunction against: (i) The conduct prohibited under section 229 or 229C of Title 18 of the United States Code; or (ii) The preparation or solicitation to engage in conduct prohibited under section 229 or 229D of Title 18 of the United States Code. (2) In addition, the United States may, in a civil action, restrain any violation of section 306 or 405 of the Act, or compel the taking of any action required by or under the Act or the Convention. Sec. 719.5 Initiation of administrative proceedings. (a) Letter of intent to charge. The Director of the Office of Export Enforcement, Bureau of Industry and Security, may notify a respondent by letter of the intent to charge. This letter of intent to charge will advise a respondent that BIS has conducted an investigation and intends to recommend that the Secretary of State issue a Notice of Violation and Assessment (NOVA). The letter of intent to charge will be accompanied by a draft NOVA and proposed order, and will give the respondent a specified period of time to contact BIS to discuss settlement of the allegations set forth in the draft NOVA. An administrative enforcement proceeding is not initiated by a letter of intent to charge. If the respondent does not contact BIS within the specified time, or if the respondent requests it, BIS will make its request for initiation of an administrative enforcement proceeding to the Secretary of State in accordance with paragraph (b) of this section. (b) Request for Notice of Violation and Assessment (NOVA). The Director of the Office of Export Enforcement, Bureau of Industry and Security, may request that the Secretary of State initiate an administrative enforcement proceeding under this Sec. 719.5 and 22 CFR 103.7. If the request is in accordance with applicable law, the Secretary of State will initiate an administrative enforcement proceeding by issuing a NOVA. The Office of Chief Counsel shall serve the NOVA as directed by the Secretary of State. (c) Content of NOVA. The NOVA shall constitute a formal complaint, and will set forth the basis for the issuance of the proposed order. It will set forth the alleged violation(s) and the essential facts with respect to the alleged violation(s), reference the relevant statutory, regulatory or other provisions, and state the amount of the civil penalty to be assessed. The NOVA will inform the respondent of the right to request a hearing pursuant to Sec. 719.6 of the CWCR, inform the respondent that failure to request such a hearing shall result in the proposed order becoming final and unappealable on signature of the Secretary of State, and provide payment instructions. A copy of the regulations that govern the administrative proceedings will accompany the NOVA. (d) Proposed order. A proposed order shall accompany every NOVA, letter of intent to charge, and draft NOVA. It will briefly set forth the substance of the alleged violation(s) and the statutory, regulatory or other provisions violated. It will state the amount of the civil penalty to be assessed. (e) Notice. Notice of the intent to charge or of the initiation of formal proceedings shall be given to the respondent (or respondent's agent for service of process, or attorney) by sending relevant documents, via first class mail, facsimile, or by personal delivery. Sec. 719.6 Request for hearing and answer. (a) Time to answer. If the respondent wishes to contest the NOVA and proposed order issued by the Secretary of State, the respondent must request a hearing in writing within 15 business days from the postmarked date of the NOVA. If the respondent requests a hearing, the respondent must answer the NOVA within 30 days from the date of the request for hearing. The request for hearing and answer must be filed with the Administrative Law Judge (ALJ), along with a copy of the NOVA and proposed order, and served on the Office of Chief Counsel, and any other address(es) specified in the NOVA, in accordance with Sec. 719.8 of the CWCR. (b) Content of answer. The respondent's answer must be responsive to the NOVA and proposed order, and must fully set forth the nature of the respondent's defense(s). The answer must specifically admit or deny each separate allegation in the NOVA; if the respondent is without knowledge, the answer will so state and will operate as a denial. Failure to deny or controvert a particular allegation will be deemed an admission of that allegation. The answer must also set forth any additional or new matter the respondent contends supports a defense or claim of mitigation. Any defense or partial defense not specifically set forth in the answer shall be deemed waived, and evidence thereon may be refused, except for good cause shown. (c) English required. The request for hearing, answer, and all other papers and documentary evidence must be submitted in English. (d) Waiver. The failure of the respondent to file a request for a hearing and an answer within the times provided constitutes a waiver of the respondent's right to appear and contest the allegations set forth in the NOVA and proposed order. If no hearing is requested and no answer is provided, the proposed order will be signed and become final and unappealable. Sec. 719.7 Representation. A respondent individual may appear and participate in person, a corporation by a duly authorized officer or employee, and a partnership by a partner. If a respondent is represented by counsel, counsel shall be a member in good standing of the bar of any State, Commonwealth or Territory of the United States, or of the District of Columbia, or be licensed to practice law in the country in which counsel resides, if not the United States. The U.S. Government will be represented by the Office of Chief Counsel. A respondent personally, or through counsel or other representative who has the power of attorney to represent the respondent, shall file a notice of appearance with the ALJ, or, in cases where settlement negotiations occur before any filing with the ALJ, with the Office of Chief Counsel. [[Page 24966]] Sec. 719.8 Filing and service of papers other than the NOVA. (a) Filing. All papers to be filed with the ALJ shall be addressed to ``CWC Administrative Enforcement Proceedings'' at the address set forth in the NOVA, or such other place as the ALJ may designate. Filing by United States mail (first class postage prepaid), by express or equivalent parcel delivery service, via facsimile, or by hand delivery, is acceptable. Filing from a foreign country shall be by airmail or via facsimile. A copy of each paper filed shall be simultaneously served on all parties. (b) Service. Service shall be made by United States mail (first class postage prepaid), by express or equivalent parcel delivery service, via facsimile, or by hand delivery of one copy of each paper to each party in the proceeding. The Department of State is a party to cases under the CWCR, but will be represented by the Office of Chief Counsel. Therefore, service on the government party in all proceedings shall be addressed to Office of Chief Counsel for Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room H-3839, Washington, DC 20230, or sent via facsimile to (202) 482-0085. Service on a respondent shall be to the address to which the NOVA and proposed order was sent, or to such other address as the respondent may provide. When a party has appeared by counsel or other representative, service on counsel or other representative shall constitute service on that party. (c) Date. The date of filing or service is the day when the papers are deposited in the mail or are delivered in person, by delivery service, or by facsimile. Refusal by the person to be served, or by the person's agent or attorney, of service of a document or other paper will be considered effective service of the document or other paper as of the date of such refusal. (d) Certificate of service. A certificate of service signed by the party making service, stating the date and manner of service, shall accompany every paper, other than the NOVA and proposed order, filed and served on the parties. (e) Computation of time. In computing any period of time prescribed or allowed by this part, the day of the act, event, or default from which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, a Sunday, or a legal holiday (as defined in Rule 6(a) of the Federal Rules of Civil Procedure), in which case the period runs until the end of the next day which is neither a Saturday, a Sunday, nor a legal holiday. Intermediate Saturdays, Sundays, and legal holidays are excluded from the computation when the period of time prescribed or allowed is 7 days or less. Sec. 719.9 Summary decision. The ALJ may render a summary decision disposing of all or part of a proceeding on the motion of any party to the proceeding, provided that there is no genuine issue as to any material fact and the party is entitled to summary decision as a matter of law. Sec. 719.10 Discovery. (a) General. The parties are encouraged to engage in voluntary discovery regarding any matter, not privileged, which is relevant to the subject matter of the pending proceeding. The provisions of the Federal Rules of Civil Procedure relating to discovery apply to the extent consistent with this part and except as otherwise provided by the ALJ or by waiver or agreement of the parties. The ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. These orders may include limitations on the scope, method, time and place of discovery, and provisions for protecting the confidentiality of classified or otherwise sensitive information, including Confidential Business Information (CBI) as defined by the Act. (b) Interrogatories and requests for admission or production of documents. A party may serve on any party interrogatories, requests for admission, or requests for production of documents for inspection and copying, and a party concerned may apply to the ALJ for such enforcement or protective order as that party deems warranted with respect to such discovery. The service of a discovery request shall be made at least 20 days before the scheduled date of the hearing unless the ALJ specifies a shorter time period. Copies of interrogatories, requests for admission and requests for production of documents and responses thereto shall be served on all parties and a copy of the certificate of service shall be filed with the ALJ. Matters of fact or law of which admission is requested shall be deemed admitted unless, within a period designated in the request (at least 10 days after service, or within such additional time as the ALJ may allow), the party to whom the request is directed serves upon the requesting party a sworn statement either denying specifically the matters of which admission is requested or setting forth in detail the reasons why the party to whom the request is directed cannot truthfully either admit or deny such matters. (c) Depositions. Upon application of a party and for good cause shown, the ALJ may order the taking of the testimony of any person by deposition and the production of specified documents or materials by the person at the deposition. The application shall state the purpose of the deposition and set forth the facts sought to be established through the deposition. (d) Enforcement. The ALJ may order a party to answer designated questions, to produce specified documents or things or to take any other action in response to a proper discovery request. If a party does not comply with such an order, the ALJ may make a determination or enter any order in the proceeding as the ALJ deems reasonable and appropriate. The ALJ may strike related charges or defenses in whole or in part or may take particular facts relating to the discovery request to which the party failed or refused to respond as being established for purposes of the proceeding in accordance with the contentions of the party seeking discovery. In addition, enforcement by any district court of the United States in which venue is proper may be sought as appropriate. Sec. 719.11 Subpoenas. (a) Issuance. Upon the application of any party, supported by a satisfactory showing that there is substantial reason to believe that the evidence would not otherwise be available, the ALJ may issue subpoenas to any person requiring the attendance and testimony of witnesses and the production of such books, records or other documentary or physical evidence for the purpose of the hearing, as the ALJ deems relevant and material to the proceedings, and reasonable in scope. Witnesses shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contempt, challenge or refusal to obey a subpoena served upon any person pursuant to this paragraph, any district court of the United States, in which venue is proper, has jurisdiction to issue an order requiring any such person to comply with such subpoena. Any failure to obey such order of the court is punishable by the court as a contempt thereof. (b) Service. Subpoenas issued by the ALJ may be served by any of the methods set forth in Sec. 719.8(b) of the CWCR. (c) Timing. Applications for subpoenas must be submitted at least 10 days before the scheduled hearing or [[Page 24967]] deposition, unless the ALJ determines, for good cause shown, that extraordinary circumstances warrant a shorter time. Sec. 719.12 Matters protected against disclosure. (a) Protective measures. The ALJ may limit discovery or introduction of evidence or issue such protective or other orders as in the ALJ's judgment may be needed to prevent undue disclosure of classified or sensitive documents or information, including Confidential Business Information as defined by the Act. Where the ALJ determines that documents containing classified or sensitive matter must be made available to a party in order to avoid prejudice, the ALJ may direct the other party to prepare an unclassified and nonsensitive summary or extract of the documents. The ALJ may compare the extract or summary with the original to ensure that it is supported by the source document and that it omits only so much as must remain undisclosed. The summary or extract may be admitted as evidence in the record. (b) Arrangements for access. If the ALJ determines that the summary procedure outlined in paragraph (a) of this section is unsatisfactory, and that classified or otherwise sensitive matter must form part of the record in order to avoid prejudice to a party, the ALJ may provide the parties opportunity to make arrangements that permit a party or a representative to have access to such matter without compromising sensitive information. Such arrangements may include obtaining security clearances or giving counsel for a party access to sensitive information and documents subject to assurances against further disclosure, including a protective order, if necessary. Sec. 719.13 Prehearing conference. (a) On the ALJ's own motion, or on request of a party, the ALJ may direct the parties to participate in a prehearing conference, either in person or by telephone, to consider: (1) Simplification of issues; (2) The necessity or desirability of amendments to pleadings; (3) Obtaining stipulations of fact and of documents to avoid unnecessary proof; or (4) Such other matters as may expedite the disposition of the proceedings. (b) The ALJ may order the conference proceedings to be recorded electronically or taken by a reporter, transcribed and filed with the ALJ. (c) If a prehearing conference is impracticable, the ALJ may direct the parties to correspond with the ALJ to achieve the purposes of such a conference. (d) The ALJ will prepare a summary of any actions agreed on or taken pursuant to this section. The summary will include any written stipulations or agreements made by the parties. Sec. 719.14 Hearings. (a) Scheduling. Upon receipt of a written and dated request for a hearing, the ALJ shall, by agreement with all the parties or upon notice to all parties of at least 30 days, schedule a hearing. All hearings will be held in Washington, DC, unless the ALJ determines, for good cause shown, that another location would better serve the interest of justice. (b) Hearing procedure. Hearings will be conducted in a fair and impartial manner by the ALJ. All hearings will be closed, unless the ALJ for good cause shown determines otherwise. The rules of evidence prevailing in courts of law do not apply, and all evidentiary material deemed by the ALJ to be relevant and material to the proceeding and not unduly repetitious will be received and given appropriate weight, except that any evidence of settlement which would be excluded under Rule 408 of the Federal Rules of Evidence is not admissible. Witnesses will testify under oath or affirmation, and shall be subject to cross- examination. (c) Testimony and record. (1) A verbatim record of the hearing and of any other oral proceedings will be taken by reporter or by electronic recording, and filed with the ALJ. If any party wishes to obtain a written copy of the transcript, that party shall pay the costs of transcription. The parties may share the costs if both wish a transcript. (2) Upon such terms as the ALJ deems just, the ALJ may direct that the testimony of any person be taken by deposition and may admit an affidavit or declaration as evidence, provided that any affidavits or declarations have been filed and served on the parties sufficiently in advance of the hearing to permit a party to file and serve an objection thereto on the grounds that it is necessary that the affiant or declarant testify at the hearing and be subject to cross-examination. (d) Failure to appear. If a party fails to appear in person or by counsel at a scheduled hearing, the hearing may nevertheless proceed. The party's failure to appear will not affect the validity of the hearing or any proceeding or action taken thereafter. Sec. 719.15 Procedural stipulations. Unless otherwise ordered and subject to Sec. 719.16 of the CWCR, a written stipulation agreed to by all parties and filed with the ALJ will modify the procedures established by this part. Sec. 719.16 Extension of time. The parties may extend any applicable time limitation by stipulation filed with the ALJ before the time limitation expires, or the ALJ may, on the ALJ's own initiative or upon application by any party, either before or after the expiration of any applicable time limitation, extend the time , except that the requirement that a hearing be demanded within 15 days, and the requirement that a final agency decision be made within 30 days, may not be modified. Sec. 719.17 Post-hearing submissions. All parties shall have the opportunity to file post-hearing submissions that may include findings of fact and conclusions of law, supporting evidence and legal arguments, exceptions to the ALJ's rulings or to the admissibility of evidence, and proposed orders and settlements. Sec. 719.18 Decisions. (a) Initial decision. After considering the entire record in the case, the ALJ will issue an initial decision based on a preponderance of the evidence. The decision will include findings of fact, conclusions of law, and a decision based thereon as to whether the respondent has violated the Act. If the ALJ finds that the evidence of record is insufficient to sustain a finding that a violation has occurred with respect to one or more allegations, the ALJ shall order dismissal of the allegation(s) in whole or in part, as appropriate. If the ALJ finds that one or more violations have been committed, the ALJ shall issue an order imposing administrative sanctions. (b) Factors considered in assessing penalties. In determining the amount of a civil penalty, the ALJ shall take into account the nature, circumstances, extent and gravity of the violation(s), and, with respect to the respondent, the respondent's ability to pay the penalty, the effect of a civil penalty on the respondent's ability to continue to do business, the respondent's history of prior violations, the respondent's degree of culpability, the existence of an internal compliance program, and such other matters as justice may require. (c) Certification of initial decision. The ALJ shall immediately certify the initial decision and order to the Executive Director of the Office of Legal Adviser, U.S. Department of State, 2201 C Street, NW., Room 5519, Washington, DC 20520, to the Office of Chief Counsel [[Page 24968]] at the address in Sec. 719.8, and to the respondent, by personal delivery or overnight mail. (d) Review of initial decision. The initial decision shall become the final agency decision and order unless, within 30 days, the Secretary of State modifies or vacates it, with or without conditions, in accordance with 22 CFR 103.8. Sec. 719.19 Settlement. (a) Settlements before issuance of a NOVA. When the parties have agreed to a settlement of the case, the Director of the Office of Export Enforcement will recommend the settlement to the Secretary of State, forwarding a proposed settlement agreement and order, which, in accordance with 22 CFR 103.9(a), the Secretary of State will approve and sign if the recommended settlement is in accordance with applicable law. (b) Settlements following issuance of a NOVA. The parties may enter into settlement negotiations at any time during the time a case is pending before the ALJ. If necessary, the parties may extend applicable time limitations or otherwise request that the ALJ stay the proceedings while settlement negotiations continue. When the parties have agreed to a settlement of the case, the Office of Chief Counsel will recommend the settlement to the Secretary of State, forwarding a proposed settlement agreement and order, which, in accordance with 22 CFR 103.9(b), the Secretary will approve and sign if the recommended settlement is in accordance with applicable law. (c) Settlement scope. Any respondent who agrees to an order imposing any administrative sanction does so solely for the purpose of resolving the claims in the administrative enforcement proceeding brought under this part. This reflects the fact that the government officials involved have neither the authority nor the responsibility for initiating, conducting, settling, or otherwise disposing of criminal proceedings. That authority and responsibility are vested in the Attorney General and the Department of Justice. (d) Finality. Cases that are settled may not be reopened or appealed. Sec. 719.20 Record for decision. (a) The record. The transcript of hearings, exhibits, rulings, orders, all papers and requests filed in the proceedings, and, for purposes of any appeal under Sec. 719.18 or under 22 CFR 103.8, the decision of the ALJ and such submissions as are provided for under Sec. 719.18 or 22 CFR 103.8 will constitute the record and the exclusive basis for decision. When a case is settled, the record will consist of any and all of the foregoing, as well as the NOVA or draft NOVA, settlement agreement, and order. (b) Restricted access. On the ALJ's own motion, or on the motion of any party, the ALJ may direct that there be a restricted access portion of the record for any material in the record to which public access is restricted by law or by the terms of a protective order entered in the proceedings. A party seeking to restrict access to any portion of the record is responsible, prior to the close of the proceeding, for submitting a version of the document(s) proposed for public availability that reflects the requested deletion. The restricted access portion of the record will be placed in a separate file and the file will be clearly marked to avoid improper disclosure and to identify it as a portion of the official record in the proceedings. The ALJ may act at any time to permit material that becomes declassified or unrestricted through passage of time to be transferred to the unrestricted access portion of the record. (c) Availability of documents.--(1) Scope. All NOVAs and draft NOVAs, answers, settlement agreements, decisions and orders disposing of a case will be displayed on the BIS Freedom of Information Act (FOIA) Web site, at http://www.bis.doc.gov/foia, which is maintained by the Office of Administration, Bureau of Industry and Security, U.S. Department of Commerce. This office does not maintain a separate inspection facility. The complete record for decision, as defined in paragraphs (a) and (b) of this section will be made available on request. (2) Timing. The record for decision will be available only after the final administrative disposition of a case. Parties may seek to restrict access to any portion of the record under paragraph (b) of this section. Sec. 719.21 Payment of final assessment. (a) Time for payment. Full payment of the civil penalty must be made within 30 days of the effective date of the order or within such longer period of time as may be specified in the order. Payment shall be made in the manner specified in the NOVA. (b) Enforcement of order. The government party may, through the Attorney General, file suit in an appropriate district court if necessary to enforce compliance with a final order issued under the CWCR. This suit will include a claim for interest at current prevailing rates from the date payment was due or ordered. (c) Offsets. The amount of any civil penalty imposed by a final order may be deducted from any sum(s) owed by the United States to a respondent. Sec. 719.22 Reporting a violation. If a person learns that a violation of the Convention, the Act, or the CWCR has occurred or may occur, that person may notify: Office of Export Enforcement, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room H-4520, Washington, DC 20230; Tel: (202) 482-1208; Facsimile: (202) 482-0964. PART 720--DENIAL OF EXPORT PRIVILEGES Sec. 720.1 Denial of export privileges for convictions under 18 U.S.C. 229. 720.2 Initiation of administrative action denying export privileges. 720.3 Final decision on administrative action denying export privileges. 720.4 Effect of denial. Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 720.1 Denial of export privileges for convictions under 18 U.S.C. 229. Any person in the United States or any U.S. national may be denied export privileges after notice and opportunity for hearing if that person has been convicted under Title 18, Section 229 of the United States Code of knowingly: (a) Developing, producing, otherwise acquiring, transferring directly or indirectly, receiving, stockpiling, retaining, owning, possessing, or using, or threatening to use, a chemical weapon; or (b) Assisting or inducing, in any way, any person to violate paragraph (a) of this section, or attempting or conspiring to violate paragraph (a) of this section. Sec. 720.2 Initiation of administrative action denying export privileges. (a) Notice. BIS will notify any person convicted under Section 229, Title 18, United States Code, of BIS's intent to deny that person's export privileges. The notification letter shall reference the person's conviction, specify the number of years for which BIS intends to deny export privileges, set forth the statutory and regulatory authority for the action, state whether the denial order will be standard or non- standard pursuant to Supplement No. 1 to part 764 of the Export Administration Regulations (15 CFR parts 730 through 799), and provide that the person may request a hearing before the Administrative Law Judge within 30 days from the date of the notification letter. [[Page 24969]] (b) Waiver. The failure of the notified person to file a request for a hearing within the time provided constitutes a waiver of the person's right to contest the denial of export privileges that BIS intends to impose. (c) Order of Assistant Secretary. If no hearing is requested, the Assistant Secretary for Export Enforcement will order that export privileges be denied as indicated in the notification letter. Sec. 720.3 Final decision on administrative action denying export privileges. (a) Hearing. Any hearing that is granted by the ALJ shall be conducted in accordance with the procedures set forth in Sec. 719.14 of the CWCR. (b) Initial decision and order. After considering the entire record in the proceeding, the ALJ will issue an initial decision and order, based on a preponderance of the evidence. The ALJ may consider factors such as the seriousness of the criminal offense that is the basis for conviction, the nature and duration of the criminal sanctions imposed, and whether the person has undertaken any corrective measures. The ALJ may dismiss the proceeding if the evidence is insufficient to sustain a denial of export privileges, or may issue an order imposing a denial of export privileges for the length of time the ALJ deems appropriate. An order denying export privileges may be standard or non-standard, as provided in Supplement No. 1 to part 764 of the Export Administration Regulations (15 CFR parts 730 through 799). The initial decision and order will be served on each party, and will be published in the Federal Register as the final decision of BIS 30 days after service, unless an appeal is filed in accordance with paragraph (c) of this section. (c) Grounds for appeal. (1) A party may, within 30 days of the ALJ's initial decision and order, petition the Under Secretary, Bureau of Industry and Security, for review of the initial decision and order. A petition for review must be filed with the Office of Under Secretary, Bureau of Industry and Security, Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, and shall be served on the Office of Chief Counsel for Industry and Security or on the respondent. Petitions for review may be filed only on one or more of the following grounds: (i) That a necessary finding of fact is omitted, erroneous or unsupported by substantial evidence of record; (ii) That a necessary legal conclusion or finding is contrary to law; (iii) That prejudicial procedural error occurred; or (iv) That the decision or the extent of sanctions is arbitrary, capricious or an abuse of discretion. (2) The appeal must specify the grounds on which the appeal is based and the provisions of the order from which the appeal was taken. (d) Appeal procedure. The Under Secretary, Bureau of Industry and Security, normally will not hold hearings or entertain oral arguments on appeals. A full written statement in support of the appeal must be filed with the appeal and be simultaneously served on all parties, who shall have 30 days from service to file a reply. At his/her discretion, the Under Secretary may accept new submissions, but will not ordinarily accept those submissions filed more than 30 days after the filing of the reply to the appellant's first submission. (e) Decisions. The Under Secretary's decision will be in writing and will be accompanied by an order signed by the Under Secretary, Bureau of Industry and Security, giving effect to the decision. The order may either dispose of the case by affirming, modifying or reversing the order of the ALJ, or may refer the case back to the ALJ for further proceedings. Any order that imposes a denial of export privileges will be published in the Federal Register. Sec. 720.4 Effect of denial. Any person denied export privileges pursuant to this part shall be considered a ``person denied export privileges'' for purposes of the Export Administration Regulations (EAR) (15 CFR parts 730 through 799). Orders denying export privileges pursuant to Parts 764 and 766 of the EAR are published in the Federal Register when they are issued and are legally controlling documents in accordance with their terms. BIS maintains unofficial compilations of persons denied export privileges on its Web site. PART 721--INSPECTION OF RECORDS AND RECORDKEEPING Sec. 721.1 Inspection of records. 721.2 Recordkeeping. 721.3 Destruction or disposal of records. Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. Sec. 721.1 Inspection of records. Upon request by BIS or any other agency of competent jurisdiction, you must permit access to and copying of any record relating to compliance with the requirements of the CWCR. This requires that you make available the equipment and, if necessary, knowledgeable personnel for locating, reading, and reproducing any record. Sec. 721.2 Recordkeeping. (a) Requirements. Each person, facility, plant site or trading company required to submit a declaration, report, or advance notification under parts 712 through 715 of the CWCR must retain all supporting materials and documentation used by a unit, plant, facility, plant site or trading company to prepare such declaration, report, or advance notification to determine production processing, consumption, export or import of chemicals. In the event that a declared facility is sold, the previous owner of the facility must retain all such supporting materials and documentation that were not transferred to the current owner of the facility (e.g., as part of the contract involving the sale of the facility)--otherwise, the current owner of the facility is responsible for retaining such supporting materials and documentation. Whenever the previous owner of a declared facility retains such supporting materials and documentation, the owner must inform BIS of any subsequent change in address or other contact information, so that BIS will be able to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to inspection activities involving the facility (see Sec. 716.4 of the CWCR). (b) Five year retention period. All supporting materials and documentation required to be kept under paragraph (a) of this section must be retained for five years from the due date of the applicable declaration, report, or advance notification, or for five years from the date of submission of the applicable declaration, report or advance notification, whichever is later. Due dates for declarations, reports and advance notifications are provided in parts 712 through 715 of the CWCR. (c) Location of records. If a facility is subject to inspection under part 716 of the CWCR, records retained under this section must be maintained at the facility or must be accessible electronically at the facility for purposes of inspection of the facility by Inspection Teams. If a facility is not subject to inspection under part 716 of the CWCR, records retained under this section may be maintained either at the facility subject to a declaration, report, or advance notification requirement, or at a remote location, but all records must be accessible to any authorized agent, official or employee of the U.S. Government under Sec. 721.1 of the CWCR. (d) Reproduction of original records. (1) You may maintain reproductions [[Page 24970]] instead of the original records provided all of the requirements of paragraph (b) of this section are met. (2) If you must maintain records under this part, you may use any photostatic, miniature photographic, micrographic, automated archival storage, or other process that completely, accurately, legibly and durably reproduces the original records (whether on paper, microfilm, or through electronic digital storage techniques). The process must meet all of the following requirements, which are applicable to all systems: (i) The system must be capable of reproducing all records on paper. (ii) The system must record and be able to reproduce all marks, information, and other characteristics of the original record, including both obverse and reverse sides (unless blank) of paper documents in legible form. (iii) When displayed on a viewer, monitor, or reproduced on paper, the records must exhibit a high degree of legibility and readability. For purposes of this section, legible and legibility mean the quality of a letter or numeral that enable the observer to identify it positively and quickly to the exclusion of all other letters or numerals. Readable and readability mean the quality of a group of letters or numerals being recognized as complete words or numbers. (iv) The system must preserve the initial image (including both obverse and reverse sides, unless blank, of paper documents) and record all changes, who made them and when they were made. This information must be stored in such a manner that none of it may be altered once it is initially recorded. (v) You must establish written procedures to identify the individuals who are responsible for the operation, use and maintenance of the system. (vi) You must keep a record of where, when, by whom, and on what equipment the records and other information were entered into the system. (3) Requirements applicable to a system based on digital images. For systems based on the storage of digital images, the system must provide accessibility to any digital image in the system. The system must be able to locate and reproduce all records according to the same criteria that would have been used to organize the records had they been maintained in original form. (4) Requirements applicable to a system based on photographic processes. For systems based on photographic, photostatic, or miniature photographic processes, the records must be maintained according to an index of all records in the system following the same criteria that would have been used to organize the records had they been maintained in original form. Sec. 721.3 Destruction or disposal of records. If BIS or other authorized U.S. government agency makes a formal or informal request for a certain record or records, such record or records may not be destroyed or disposed of without the written authorization of the requesting entity. PART 722--INTERPRETATIONS [RESERVED] Note: This part is reserved for interpretations of parts 710 through 721 and also for applicability of decisions by the Organization for the Prohibition of Chemical Weapons (OPCW). PARTS 723-729 [RESERVED] Dated: April 12, 2006. Matthew S. Borman, Deputy Assistant Secretary for Export Administration. [FR Doc. 06-3747 Filed 4-26-06; 8:45 am] BILLING CODE 3510-33-P

usgpo

2024-10-08T14:08:35.281266

FR

FR-2006-04-27/06-3165

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Rules and Regulations] [Pages 24972-25008] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3165] [[Page 24971]] ----------------------------------------------------------------------- Part III Department of Energy ----------------------------------------------------------------------- Office of Energy Efficiency and Renewable Energy ----------------------------------------------------------------------- 10 CFR Part 431 Energy Conservation Program: Test Procedures for Distribution Transformers; Final Rule Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations [[Page 24972]] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy 10 CFR Part 431 [Docket No. EE-TP-98-550] RIN 1904-AA85 Energy Conservation Program: Test Procedures for Distribution Transformers AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: Pursuant to Sections 323(b)(10) and 346(a) of the Energy Policy and Conservation Act, as amended, (EPCA or the Act), 42 U.S.C. 6293(b)(10) and 6317(a), the Department of Energy (DOE or the Department) promulgates a rule prescribing test procedures for measuring the energy efficiency of distribution transformers under EPCA, definitions to delineate the products covered by the test procedures, provisions (including a sampling plan) manufacturers must use to implement the test procedures, provisions to allow manufacturers to use calculation methods to determine the efficiency of some of their models, and enforcement testing for distribution transformers. The Department will use the new test procedures in evaluating what energy conservation standards are warranted for distribution transformers other than the low-voltage dry-type. When DOE promulgates such standards, then the test procedures and other provisions adopted today will be used to determine the efficiencies and assess compliance of the transformers subject to these standards. For low-voltage dry-type distribution transformers, the new standards prescribed for them in section 325(y) of EPCA, 42 U.S.C. 6295(y), go into effect on January 1, 2007, and all of the provisions of today's rule will become applicable to those transformers at that time. EFFECTIVE DATE: This final rule is effective May 30, 2006, except for Sec. 431.197(a)(4)(i), section 6.2(f) of Appendix A and section 6.2(b) and (c) of Appendix A which contain information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Office of Energy Efficiency and Renewable Energy will publish a document in the Federal Register announcing the effective date. FOR FURTHER INFORMATION CONTACT: Cyrus Nasseri, Project Manager, Test Procedures for Distribution Transformers, Docket No. EE-TP-98-550, United States (U.S.) Department of Energy, Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-9138, email: [email protected]. Francine Pinto, Esq., U.S. Department of Energy, Office of General Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585- 0121, (202) 586-9507, email: [email protected]. SUPPLEMENTARY INFORMATION: I. Introduction A. Authority and Background B. Summary of the Final Rule II. Discussion A. General B. Transformers Subject to the Test Procedure--Definition of Distribution Transformer 1. General 2. Incorporation and Definition of EPCA's Exclusions--General 3. Specific EPCA Exclusions a. Transformers with Tap Ranges of 20 Percent or More and Special Impedance Transformers b. Testing Transformers c. Grounding Transformers 4. Other Exclusions Considered 5. Rebuilt or Refurbished Distribution Transformers 6. Coverage of Liquid-Filled Transformers C. Test Procedure for Distribution Transformers 1. General Discussion 2. Specific Provisions of the Test Procedure a. Testing Harmonic Transformers b. Determining Winding Temperatures c. Test Set Neutrals d. Losses from Auxiliary Devices e. Testing of Multiple Voltage Transformers f. Short-Circuiting Conductor Strap g. Revisions Suggested by NEMA in TP 2-2005 h. Language Corrections as to Conversion of the Resistance Measurement to the Reference Temperature and Conducting the No-Load Loss Test D. Basic Model 1. General Discussion 2. Definition of a Basic Model E. Manufacturer's Determination of Efficiency 1. General Discussion 2. Sampling Plan 3. Alternative Efficiency Determination Method (AEDM) F. Enforcement Procedures III. Procedural Requirements A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act of 1980 C. Review Under the Paperwork Reduction Act D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act of 1999 I. Review Under Executive Order 12630 J. Review Under the Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Review Under Section 32 of the Federal Energy Administration Act of 1974 M. Congressional Notification IV. Approval of the Office of the Secretary I. Introduction A. Authority and Background Part C of Title III of the Energy Policy and Conservation Act (EPCA) provides for an energy conservation program for certain industrial equipment. (42 U.S.C. 6311-6317) Section 346 of EPCA states that the Secretary of Energy (Secretary) must prescribe testing requirements and energy conservation standards for those ``distribution transformers'' for which the Secretary determines that standards ``would be technologically feasible and economically justified, and would result in significant energy savings.'' (42 U.S.C. 6317(a)) The recent amendments to EPCA set forth in the Energy Policy Act of 2005 (EPACT 2005), Pub. L. 109-58, accomplish the following for this equipment: (1) Section 321(35) of EPCA now defines ``distribution transformer'' (42 U.S.C. 6291(35)), (2) Section 323(b)(10) of EPCA provides that the testing requirements ``shall be based on the `Standard Test Method for Measuring the Energy Consumption of Distribution Transformers' prescribed by the National Electrical Manufacturers Association (NEMA TP 2-1998).'' (42 U.S.C. 6293(b)(10)),\1\ and (3) section 325(y) of EPCA prescribes minimum efficiency levels for low-voltage dry-type distribution transformers (42 U.S.C. 6295(y)). --------------------------------------------------------------------------- \1\ Section 323(b)(10)(B) also provides that the Department may ``review and revise'' the test procedures established under that subparagraph. (42 U.S.C. 6293(b)(10)(B)) --------------------------------------------------------------------------- On October 22, 1997, the Department issued a notice setting forth its determination (hereafter referred to as the ``Determination'') that, based on the best information it had available, energy conservation standards for electric distribution transformers appeared to be technologically feasible and economically justified, and were likely to result in significant energy savings. 62 FR 54809. The Department subsequently began the process for its issuance of test procedures for distribution transformers. On February 10, 1998, the Department held a public workshop (the ``1998 workshop'') to discuss the following issues: (a) Whether DOE [[Page 24973]] should adopt national and international consensus standards as its test procedures for determining the energy efficiency of distribution transformers, (b) defining the transformers that the test procedures will cover, (c) whether, and to what extent, there is a burden on industry, especially on manufacturers, because of additional testing and data processing, (d) the definition of ``basic model'' for distribution transformers, (e) the sampling plan for units to be tested, (f) the selection of an energy consumption measure for distribution transformers, (g) the selection of reference temperatures, (h) the requirements for applying corrections to measurement data, and (i) the requirements for quality assurance in testing. The Department also gave interested parties an opportunity to submit written comments on these issues. In 1998, the National Electrical Manufacturers Association (NEMA) published ``NEMA Standards Publication No. TP 2-1998, Standard Test Method for Measuring the Energy Consumption of Distribution Transformers,'' (NEMA TP 2-1998) a publication that extracts and presents pertinent parts of the current industry standards for distribution transformer efficiency testing. NEMA TP 2-1998 also presents a weighted average method to compute the energy efficiency of transformers, in order to demonstrate compliance with the efficiency levels in NEMA Standard TP 1-1996 (NEMA TP 1).\2\ Comments received at the 1998 workshop, written comments associated with this workshop, and NEMA TP 2-1998 formed the basis for preparing the November 12, 1998, Notice of Proposed Rulemaking (the ``1998 proposed rule'') in this proceeding. 63 FR 63359. --------------------------------------------------------------------------- \2\ NEMA TP 1 contains suggested efficiency levels. Its full name and title are ``NEMA Standards Publication No. TP 1-1996, Guide for Determining Energy Efficiency for Distribution Transformers.'' NEMA TP 1 was updated in 2002, with modifications to some of the efficiency levels. --------------------------------------------------------------------------- In the 1998 proposed rule, the Department proposed to adopt testing methods that (1) it could use to evaluate distribution transformers during the development of efficiency standards, and (2) manufacturers and DOE would use to determine the efficiency of the transformers which the standards would cover. DOE proposed to incorporate by reference as its test methods the provisions from either the Institute of Electrical and Electronics Engineers (IEEE) Standards C57.12.90-1993 and C57.12.91-1993 (using IEEE C57.12.00-1993 as an additional reference source), or NEMA TP 2-1998. The 1998 proposed rule also included proposed definitions of ``distribution transformer'' and related terms, of terms used in the test procedure provisions, and of ``basic model.'' It also proposed a sampling plan for applying the test procedures to perform compliance testing. The sampling approach was based on the plan for compliance testing in 10 Code of Federal Regulations (CFR) Part 430, which contains energy efficiency requirements for consumer products, but tailored to distribution transformers and with a minimum sample size of five units. The Department selected this approach because it appeared to provide a satisfactory balance between assuring the accuracy of efficiency ratings for distribution transformers and minimizing the testing burden on manufacturers. The Department also sought comment on three alternative compliance approaches for basic models produced in small numbers. DOE held a public meeting on January 6, 1999, on the 1998 proposed rule and received nine written comments. After reviewing the oral and written comments, DOE concluded that the comments raised a number of significant issues that required additional analysis. On June 23, 1999, the Department reopened the comment period on the 1998 proposed rule, 64 FR 33431, (the ``1999 reopening notice'') to provide an opportunity for additional public comment on the following issues: (a) The suitability of NEMA TP 2-1998 for adoption as the DOE test procedure; (b) the adequacy of stakeholder opportunity to review NEMA TP 2-1998; (c) the transformers covered under the definition of ``distribution transformer;'' (d) the suitability of the definition of ``basic model'' for the purpose of grouping transformers to limit the test burden; and (e) the appropriateness of the proposed sampling plan and a number of alternatives for demonstrating compliance. The Department received five comments in response to the 1999 reopening notice. On the basis of these comments, two additional comments it received subsequently, and its review of the issues raised by the 1998 proposed rule and the 1999 reopening notice, the Department issued a supplemental notice of proposed rulemaking (SNOPR). 69 FR 45506 (July 29, 2004). In the SNOPR, DOE proposed to adopt (1) a new ``stand alone'' test procedure for distribution transformers, drafted by the Department and consisting almost entirely of test methods contained in NEMA TP 2-1998 and other existing industry standards, (2) revised definitions to establish which transformers the test procedure covers, (3) a new definition of ``basic model'' and a new sampling plan, to implement the test procedures, (4) provisions to allow manufacturers to use calculation methods, instead of testing, to determine the efficiency of some of their models, and (5) enforcement procedures, including a testing protocol, for distribution transformers. DOE held a public meeting on September 27, 2004, on the SNOPR (the ``2004 public meeting'') and received six written comments. Concurrently with this rulemaking, the Department has evaluated the establishment of energy conservation standards for distribution transformers. On October 2, 2000, the Department made available a Framework Document for Distribution Transformer Energy Conservation Standards Rulemaking, which was the subject of a public workshop on November 1, 2000, and on which stakeholders submitted written comments before and after the workshop. 65 FR 59761 (October 6, 2000). Thereafter, the Department visited manufacturers of distribution transformers and posted on DOE's website \3\ several draft reports concerning the development of standards for these transformers. On the same day that it published the SNOPR, DOE issued an Advance Notice of Proposed Rulemaking (ANOPR) for distribution transformer standards. 69 FR 45376 (July 29, 2004). Several of the written comments DOE received in response to the ANOPR address issues raised in the SNOPR, and the Department has referenced them in the docket of this rulemaking and has considered them in formulating today's final rule. --------------------------------------------------------------------------- \3\ http://www.eere.energy.gov/buildings/appliance_standards/commercial/dist_transformers.html --------------------------------------------------------------------------- On October 18, 2005, the Department published a final rule to place in its regulations the energy conservation standards, and related definitions, that Congress prescribed in EPACT 2005 for certain consumer products and commercial and industrial equipment. 70 FR 60407. The rule included the definitions for ``distribution transformer'' and ``low-voltage dry-type distribution transformer,'' and the standards for low-voltage dry-type distribution transformers, that were contained in EPACT 2005. 10 CFR sections 431.192 and 431.196. The Department put the provisions for all of the commercial and industrial products covered by EPACT 2005, including those for distribution transformers, in 10 CFR Part 431. 70 FR 60414-18. In the prior Federal Register notices dealing [[Page 24974]] with test procedures for distribution transformers, DOE had proposed adding a new part 432 to include requirements for distribution transformers. 63 FR 63376, 63369; 69 FR 45517, 45520. As a result of DOE's decision, in response to EPACT 2005, to incorporate provisions for distribution transformers into 10 CFR Part 431, today's final rule places the new test procedures for this equipment in Subpart K to 10 CFR Part 431. B. Summary of the Final Rule The test procedure in today's rule is based on the test methods contained in NEMA TP 2-1998 \4\ and IEEE Standards C57.12.90-1999 and C57.12.91-2001. Initially, the Department will use the test procedure to evaluate distribution transformers for which it is currently developing energy conservation standards. When DOE promulgates such standards, the Department will then require manufacturers to use the test procedure to determine compliance with the standards and as a basis for their efficiency representations for covered transformers. The Department would also use the test procedure in any enforcement proceeding concerning compliance with such standards and related labeling requirements. In addition, the test procedures will become mandatory for all of these purposes--compliance determination, representations and enforcement--for low-voltage dry-type distribution transformers when standards go into effect for them, pursuant to 42 U.S.C. 6295(y), on January 1, 2007. --------------------------------------------------------------------------- \4\ In September 2005, NEMA provided the Department with its revised test procedure document, TP 2-2005, which is similar to the rule language in the SNOPR. The Department has treated this submission as a comment on the SNOPR, has incorporated into today's rule a number of the changes that this revision made to the SNOPR's rule language, and addressed below the significant differences between the revision and the SNOPR. --------------------------------------------------------------------------- The language of today's rule sets forth all testing requirements, without reference to other sources, for determining the energy efficiency of distribution transformers. Measurement of electric power consumed by the transformer is in the form of no-load and load losses. The rule specifies methods with which to measure the temperature, current, voltage, extent of distortion in voltage waveform, and direct current resistance of the windings. The rule also prescribes provisions for calculating efficiency. The testing methods are largely the same as those proposed in the SNOPR, with several clarifying changes and a few changes to provide manufacturers with greater flexibility. Today's rule amends the definition of ``distribution transformer'' that DOE recently adopted, 70 FR 60416, by adding capacity limits (the same ones the Department proposed in the SNOPR), making minor language and format changes, and clarifying the exclusion of transformers with tap ranges greater than 20 percent. As discussed below, today's definition conforms to, and incorporates the relevant language from, the definition that EPACT 2005 added to EPCA. (42 U.S.C. 6291(35)) The Department's definition establishes which transformers the test procedure covers. It uses the approach DOE proposed in the SNOPR--a broad definition with numerical criteria, but narrowed by the exclusion of specific types of transformers, many of which are not commonly understood to be distribution transformers. The numerical criteria (except for the added capacity limits) and the exclusions are the same as those in EPCA's new definition. They include virtually the same primary and secondary voltage ranges the Department proposed in the SNOPR, most of the exclusions DOE proposed, and no additional exclusions. Today's definition of distribution transformer, however, does not include the exclusions of K-factor and harmonic mitigating distribution transformers, which DOE proposed in the SNOPR but which are absent from the EPCA definition. Stakeholders will have the opportunity in the energy conservation standards rulemaking to comment to the Department on whether standards should apply to these transformers. Today's rule contains several features designed to reduce the number of transformers that manufacturers would have to test. First, the Department allows manufacturers to group models into ``basic models'' for testing purposes, and defines ``basic model'' as proposed in the SNOPR, with minor clarifications. Second, the rule includes the same type of compliance sampling plan proposed in the SNOPR, except that the sampling plan tolerance is based on a single-unit sample tolerance (confidence limit) of eight percent, rather than the five percent DOE proposed. And third, today's rule allows manufacturers to use alternative methods, other than testing, to determine the efficiency of some basic models. The rule incorporates the SNOPR proposal except that manufacturers need not use a different method for each of the following groups of distribution transformers: low-voltage dry-type, medium-voltage dry-type, and liquid-immersed. Manufacturers can use a single method for transformers in two or all three of these groups so long as the method is validated separately in each of the groups for which the manufacturer uses it. Today's rule also contains the enforcement procedures proposed in the SNOPR, including a testing protocol, modified to be consistent with the revised compliance sampling plan tolerance. Finally, the Department is republishing in this rule, without substantive change, the standards for low-voltage dry-type distribution transformers that it originally codified at 70 FR 70417. Today's rule contains a revised table that has a clearer, more appropriate format than the table in the original rule. The table also includes the reference conditions for the standards, which DOE inadvertently omitted from the initial codification but which are essential elements of the standards, as set forth in Table 4-2 of NEMA TP 1-2002, from which EPCA incorporates the standards. (42 U.S.C. 6295(y)) II. Discussion A. General Representatives of several organizations attended the public meeting on September 27, 2004, including trade associations (Copper Development Association, National Electrical Manufacturers Association (NEMA), and National Rural Electric Cooperative Association), transformer manufacturers (Acme Electric Corporation (ACME), ERMCO Distribution Transformers (ERMCO), Federal Pacific Transformer (Federal Pacific or FPT), Kuhlman Electric Corporation, Pemco Corporation (Pemco), and Howard Industries, Inc. (Howard Industries or Howard)), a core steel manufacturer (AK Steel Corporation), electric utility companies (Georgia Power Company and Ameren Services), the Canadian Government (Natural Resources Canada), the National Institute of Standards and Technology (NIST) of the U.S. Department of Commerce, and private research/consulting entities (BB&F Associates, Lawrence Berkeley National Laboratory, Merritt and Associates, Navigant Consulting, Inc., and Optimized Program Services, Inc.). NEMA also submitted a written statement in advance of the public meeting. Following the public meeting, ERMCO, Federal Pacific, Howard Industries, Cooper Power Systems (Cooper) and NEMA each submitted a written statement. In addition, the Department received ten comments in its energy conservation standards rulemaking that pertained to both the [[Page 24975]] test procedure and the energy conservation standards rulemakings. Therefore, the Department cross-referenced these comments from the energy conservation standards docket (EE-RM/STD-00-550) to this proceeding. The ten cross-referenced comments were submitted by Pemco, ERMCO, Harmonics Limited, NEMA, Federal Pacific, HVOLT, Inc. (HVOLT), Oregon Department of Energy (ODOE), Howard Industries, Power Quality International (PQI) and EMS International Consulting (EMS). The following summarizes the issues addressed in the preamble of the SNOPR and discusses in detail the points on which significant comments were presented during and after the public meeting. B. Transformers Subject to the Test Procedure--Definition of Distribution Transformer 1. General Although EPCA directed DOE to prescribe energy conservation standards and test procedures for certain ``distribution transformers'' (42 U.S.C. 6317(a)), until recently the Act did not define that term. Therefore, the Department undertook to adopt such a definition in this rulemaking. It proposed a definition in the 1998 proposed rule, 63 FR 63362-63, 63369-70, addressed the issue again in the 1999 reopening notice, 64 FR 33432-34, and proposed a substantially revised definition in the SNOPR. 69 FR 45506. That revised definition included transformers meeting numerical criteria as to primary and secondary voltage and capacity, and excluded specifically listed types of transformers. 69 FR 45509-10, 45520-22. The Department designed that definition primarily to (1) encompass within ``distribution transformer'' only those transformers commonly understood to be distribution transformers, i.e. those made for the distribution of electricity, and (2) exclude those distribution transformers for which standards clearly would not produce significant energy savings. 69 FR 45509-10. EPACT 2005 recently revised EPCA to include a definition of ``distribution transformer'' (42 U.S.C. 6291(35)), thus filling the gap DOE had sought to fill with its own definition. As part of the final rule mentioned above, to place in the CFR certain provisions prescribed in EPACT 2005, the Department incorporated this new definition, almost verbatim, into 10 CFR section 431.192. 70 FR 60407, 60416-17. (In the paragraphs that follow, the new definition is referred to as the ``EPCA'' or ``new'' definition.) The EPCA definition is similar in approach and content to the definition proposed in the SNOPR. It includes numerical criteria--a maximum input voltage and frequency that are similar to those in the SNOPR definition, and a maximum output voltage that is identical--as well as a list of excluded transformers that is quite similar to the SNOPR's list of excluded transformers. (The differences between EPCA's list of exclusions and the SNOPR's list are discussed below. Today's rule adheres to the EPCA list.) The new definition also authorizes DOE to add to the list of exclusions any type of transformer that meets certain criteria. One significant difference exists, however, between the numerical criteria in the EPCA and SNOPR definitions. No capacity ranges are stated in the new definition, whereas the SNOPR definition limits the term ``distribution transformer'' to liquid immersed units with a capacity of 10 kVA to 2500 kVA, and dry-type units with a capacity of 15 kVA to 2500 kVA. (The Department has been using a similar definition to delineate the transformers it is evaluating in the standards rulemaking. 69 FR 45381-45384.) Transformers outside of these ranges are not typically used for electricity distribution, which is the commonly understood function of a distribution transformer. The Department received no adverse comment on these proposed ranges. Moreover, NEMA agreed with the proposed lower capacity limit for dry- type transformers, indicating that efficiency standards for transformers with lower kVA ratings would fail to meet the criteria in section 346 of EPCA. (NEMA, No. 39 at p. 2; Public Meeting Transcript, No. 42.11 at p. 22) \5\ But notwithstanding the lack of any explicit capacity limits in the EPCA definition of distribution transformer, as a practical matter an upper capacity limit is implicit in that definition. A transformer's capacity is to some extent tied to its primary (input) and secondary (output) voltages. Therefore, the maximum limits for primary and secondary voltages, of 34.5 kilovolts and 600 volts, respectively, in the EPCA definition have the practical effect of limiting transformers that meet the definition to those with a maximum capacity in the range of approximately 3750 to 5000 kVA, or possibly slightly higher. The voltage limits in the EPCA definition, however, subsume no lower limit on capacity. --------------------------------------------------------------------------- \5\ A notation in the form ``NEMA, No. 39 at p. 2'' identifies a written comment the Department has received and has included in the docket of this rulemaking. This particular notation refers to a comment (1) by the National Electrical Manufacturers Association (NEMA), (2) in document number 39 in the docket of this rulemaking (maintained in the Resource Room of the Building Technologies Program), and (3) appearing on page 2 of document number 39. Likewise, ``Public Meeting Transcript, No. 42.11 at p. 22,'' for example, would refer to page 22 of the transcript of the ``Public Meeting on Test Procedures for Distribution Transformers'' held in Washington, DC, September 27, 2005, which is document number 42.11 in the docket of this rulemaking. --------------------------------------------------------------------------- It is unclear whether ``distribution transformer'' as now defined in EPCA and DOE's regulations is, or can be, subject to capacity ranges other than the just-mentioned upper limit. On the one hand, the new definition includes no such capacity limitation, and it authorizes DOE to exclude from the definition, by rule, any transformer if it is designed for a special application, is unlikely to be used in a general purpose application, and significant energy savings would not result from applying standards to it. (42 U.S.C. 6291(35)(B)(iii)) This suggests that unless, and until, DOE acts and identifies capacity ranges that meet these criteria, they are not part of the new definition of distribution transformer. On the other hand, it is uncertain whether Congress intended to regulate as distribution transformers units outside of the capacity ranges in the SNOPR, because few are used to distribute electricity. In addition, at the same time it enacted the new distribution transformer definition, Congress also directed use of, and incorporated into EPCA, provisions of NEMA TP 2- 1998 and NEMA TP 1-2002, respectively (42 U.S.C. 6293(b)(10) and 6295(y)), both of which apply only to transformers with capacity ranges similar to those in the SNOPR definition. Thus, Congress may have intended to limit the term ``distribution transformer'' to transformers within the capacity ranges that normally characterize transformers that distribute electricity. If so, that would mean the Department's authority to regulate the efficiency of transformers under 42 U.S.C. 6317 would be limited to transformers within these capacity ranges. Given the inclusive language of EPCA's definition of distribution transformer, however, the Department is not prepared at this point to infer that EPCA imposes this limitation. The Department also does not possess information on whether transformers outside of these ranges would meet the criteria in 42 U.S.C. 6291(35)(B)(iii), particularly the one on energy savings from applying standards, for exclusion from the definition of distribution transformer. The standards rulemaking [[Page 24976]] for distribution transformers, in which DOE would develop such information, and this test procedure rulemaking to a slightly lesser extent, have focused almost entirely on transformers within the capacity ranges. Thus, at the present time, DOE is proceeding on the premise that ``distribution transformer'' as defined in EPCA includes transformers outside the capacity ranges in the SNOPR. One option, therefore, would be for the Department to retain this definition in its rules, not revise it in today's rule, and apply it in any standards rulemaking as well. That would have little or no impact on adoption of the test procedures in today's rule, but it might delay issuance of the rule. The Department believes that the test procedures as proposed in the SNOPR and revised for inclusion in today's rule would be valid for determining the efficiency of transformers with capacities up to the limits implicit in EPCA's definition, and below the lower end of the proposed ranges proposed in the SNOPR. Nevertheless, because DOE had not proposed to apply the test procedure to transformers with such capacities, it would have to provide some opportunity for public comment on the applicability of the test procedure to those transformers. Doing so could delay completion of this rulemaking. The impact in the standards rulemaking, of applying the EPCA definition without capacity limits, would be much greater than the impact of doing so in this test procedure rulemaking. Formulating standards for a product involves developing an understanding of, and evaluating, factors such as the nature of the product, its market, the technical feasibility of potential efficiency improvements, the manufacturing costs of such improvements, the resulting energy savings, the cost of the improved product(s) to purchasers, the impact of efficiency standards on manufacturers and utilities, and environmental and employment impacts, as well as other factors unique to a particular product. The Department has been engaged in such activities with respect to distribution transformers for over five years, examining for the most part products within the capacity ranges in the SNOPR definition of distribution transformer. It is now developing proposed standards for these products. To expand that rulemaking now to include transformers outside these ranges would impose a substantial burden on DOE, and would substantially delay the rulemaking by requiring that the Department go back to the beginning of the process of evaluating standards for these additional transformers. Neither DOE nor stakeholders contemplated that the standards rulemaking would cover these additional transformers. To the contrary, as indicated above, interested parties had reached a consensus as to the transformers to be covered in the standards rulemaking, and expect that DOE will now move as promptly as possible to promulgate standards for these transformers. Another possibility would be for the Department to attempt to preserve the current scope of the standards and test procedure rulemakings by pursuing exclusion from the definition of distribution transformer, under 42 U.S.C. 6291(35)(B)(iii), of transformers with capacities outside the ranges specified in the SNOPR definition. This too would delay the rulemakings. For DOE to gather relevant information and assess whether transformers above and below the SNOPR's capacity ranges meet the criteria in 42 U.S.C. 6291(35)(B)(iii), would be burdensome and time consuming. And if DOE determined exclusion of these transformers to be warranted, it would have to undertake additional rulemaking proceedings to achieve such exclusion. Moreover, if DOE were to conclude that these transformers do not meet the criteria for exclusion, DOE would be in essentially the same position it is in now. The Department is determined to avoid further delays in the rulemakings on standards and test procedures for distribution transformers. Therefore, it does not wish either to expand these rulemakings to cover transformers outside the SNOPR's capacity ranges, or to pursue at this time exclusion of such transformers from the definition of distribution transformer. Furthermore, the transformers within these capacity ranges clearly are within the new EPCA definition of distribution transformer, so the Department is authorized to pursue standards for them, and DOE believes there are ample grounds to conclude that such standards are warranted under the criteria of section 346(a) of EPCA, 42 U.S.C. 6317(a). For these reasons, Sec. 431.192 of today's final rule modifies the EPCA definition of distribution transformer that was recently incorporated into the DOE rules by adding to it the kVA capacity limitations in the SNOPR definition. This definition will not include, as it could not, any transformers excluded from the EPCA definition, and today's test procedure and any standards rulemaking will not cover such transformers. The Department is adopting this definition, with its capacity limitations, for the purpose of delineating the coverage of today's rule, as well as the transformers that will be evaluated in the current standards rulemaking for distribution transformers. The inclusion of the capacity limitations in today's definition does not mean that DOE has concluded that the EPCA definition of distribution transformer includes such limitations. Rather, at some point after completion of the current rulemakings as to distribution transformers, the Department intends to evaluate transformers with larger and smaller capacities than those included in today's definition, review how EPCA should be construed with regard to those transformers, and decide what if any action to take with regard to adoption of efficiency requirements for such transformers. If DOE adopts efficiency requirements for any of these transformers, it would amend the definition of ``distribution transformer'' in its regulations accordingly. Finally, the capacity limitations in today's definition of ``distribution transformer'' will have no effect on the existing requirements for low-voltage dry-type distribution transformers. EPCA sets forth a definition and standards for this equipment, 42 U.S.C. 6291(38) and 6295(y), which DOE incorporated into its regulations at 10 CFR sections 431.192 and 431.196(a). Because the definition states that a ``low-voltage dry-type distribution transformer'' is a ``distribution transformer'' that meets certain criteria, the addition of capacity limits to the definition of ``distribution transformer'' could be read as affecting what constitutes a ``low-voltage dry-type distribution transformer'' under the regulation. As stated above, however, the maximum limits for primary and secondary voltages of 34.5 kilovolts and 600 volts, respectively, in EPCA's definition of ``distribution transformer,'' in effect limit transformers that meet that definition to those with a maximum capacity of approximately 3750 to 5000 kVA. Similarly, one of the criteria for a ``low-voltage dry-type distribution transformer'' is that its primary voltage not exceed 600 volts, 10 CFR section 431.192, which contemplates a secondary voltage much lower than 600 volts. The obvious effect of this is that a transformer will be a ``low-voltage dry-type distribution transformer'' under the regulations only if its maximum capacity is far less than 3750 kVA, and in all likelihood less than the 2500 kVA maximum in today's definition of distribution transformer. In addition, [[Page 24977]] EPCA and DOE rules prescribe standards for low-voltage dry-type distribution transformers only with kVA's within the range of 15 to 1000, 42 U.S.C. 6295(y) and 10 CFR section 431.196(a), which are within the 15 to 2500 kVA range that today's definition of ``distribution transformer'' incorporates for dry-type transformers. For these reasons, the capacity limitation in today's definition of ``distribution transformer'' has no impact on the current DOE and EPCA requirements for low-voltage dry-type distribution transformers. 2. Incorporation and Definition of EPCA's Exclusions--General As indicated above, DOE incorporated into its rules the new EPCA definition of distribution transformer, including the language listing specific types of excluded transformers and authorizing DOE to add to that list. 70 FR 60416-17. Upon further review, the Department has decided to adopt in Section 431.192 of today's rule several editorial, clarifying and format changes to the language concerning the exclusions. To begin with, this language states that the term ``distribution transformer'' does not include ``a transformer that is designed to be used in a special purpose application and is unlikely to be used in general purpose applications, such as [the list of specifically excluded transformers]'' (42 U.S.C. 6291(35)(B)(ii); 70 FR 60416-17) At first reading, this language appears to exclude unspecified types of transformers that meet the criteria just quoted, and to introduce a list consisting of specific illustrations of the transformers excluded. However, the very next paragraph of the definition states that DOE may, ``by rule,'' exclude ``any transformer not listed'' which meets criteria that, in substantial part, are virtually identical to the criteria just quoted. (42 U.S.C. 6291(35)(B)(iii); 70 FR 60416) If the definition were read as excluding any transformer, in addition to those specifically listed, that met these criteria, this would obviate and render null the provision authorizing DOE to exclude additional transformers that meet these criteria, but only through rulemaking. The Department believes, however, that the soundest construction of these provisions is that transformers not specifically listed in the definition can be excluded only through a DOE rulemaking, thus providing certainty as to which transformers are covered at any given point in time. Use of the language quoted at the beginning of this paragraph to introduce the list of specifically excluded transformers serves to describe those transformers, and helps indicate the types of transformers the statute authorizes DOE to exclude by rule. Therefore, because this provision does not actually delineate excluded transformers, and in order to avoid confusion as to the function of this language, DOE in today's rule has amended section 431.192 by excluding it. As just indicated, DOE incorporated into its definition of distribution transformer language from EPCA that authorizes DOE to add to the list of excluded transformers. (42 U.S.C. 62912(35)(B)(iii); 70 FR 60416-17) Because this language authorizes action by DOE and does not actually describe transformers that are not ``distribution transformers,'' upon further reflection the Department believes that the language need not be included in the definition in the DOE rules. Therefore, the Department has amended its definition of ``distribution transformer'' by omitting this language from section 431.92 of today's rule. As to the specific exclusions, the Department indicated when it adopted the EPCA definition, 70 FR 60408, that the definition uses incorrect terms in its exclusions of ``Uninterruptible Power System [UPS] transformer, impedance transformer, * * * [and] sealed and nonventilating transformer.'' (42 U.S.C. 6291(35)(B)(ii)) In accordance with its expressed intention to address such minor drafting problems in future rulemaking proceedings, where Congress has not already done so, 70 FR 60408, in today's rule DOE is amending its definition of distribution transformer to correct use of these terms. First, UPS transformers are commonly referred to as ``Uninterruptible Power Supply transformers,'' not ``Uninterruptible Power System transformers,'' and therefore DOE adopts the former term in today's rule. Second, every transformer has an impedance, but only transformers with impedances outside of normal ranges, i.e., ``special-impedance'' transformers, warrant exclusion from standards. The Department had proposed to exclude such transformers from its definition of distribution transformer in the SNOPR, and NEMA excludes them from coverage of NEMA TP 1 and TP 2. Therefore, DOE construes EPCA as excluding ``special impedance'' transformers, and today's rule substitutes that term for ``impedance'' in the list of exclusions. Third, IEEE standards define ``sealed'' transformers separately from ``nonventilated'' transformers, treating them as two different types of transformers. The definitions are such that it would be highly unlikely for a particular transformer to be both ``sealed'' and ``nonventilated.'' In the SNOPR, DOE treated them as two separate exclusions from the term ``distribution transformer,'' as it believes is appropriate. In light of the foregoing, DOE construes EPCA as containing separate exclusions for sealed and nonventilated transformers, and today's rule so provides. The Department has also changed the format for the specific exclusions in section 431.192 of today's rule, and adopted the approach in the SNOPR, by placing the exclusions in a numbered list, rather than simply listing them seriatim in a single paragraph. The Department believes this will make the rule easier to read and use. Finally, conforming to the approach in EPCA, DOE's recently adopted rule lists the 12 types of transformers it excludes from the term ``distribution transformer,'' but contains no definition for any of them. 70 FR 60416-17. In the SNOPR, DOE proposed definitions for the transformers it proposed to exclude. The Department believes such definitions are warranted because they help to clarify exactly which transformers are covered. Today's rule includes seven definitions drawn from IEEE standards, and five that DOE developed based on industry catalogues, practice and nomenclature. DOE believes they represent a reasonable construction of the EPCA exclusions. Except as indicated in the discussion below of the definitions of special impedance, testing and grounding transformers, they are the same definitions DOE proposed in the SNOPR. 3. Specific EPCA Exclusions a. Transformers With Tap Ranges of 20 Percent or More and Special Impedance Transformers EPCA and the Department's recently adopted rule exclude from the definition of ``distribution transformer'' transformers with ``multiple voltage taps, the highest of which equals at least 20 percent more than the lowest.'' 42 U.S.C. 6291(35)(B)(i); 70 FR 60416. The Department reads this language as excluding transformers with a tap range of 20 percent or more. It is similar to the exclusion in the SNOPR of transformers with a tap range greater than 15 percent. The language EPCA uses for this exclusion, however, is ambiguous. Each distribution transformer with multiple voltage taps has a nominal voltage at which it normally operates and other voltages (taps), typically [[Page 24978]] above and below its nominal voltage at which it can also operate. The voltage taps enable the transformer to be connected to distribution lines at these other voltages. The tap range represents the difference between the highest and lowest voltage taps relative to the nominal voltage, expressed as a percentage. It is unclear whether, under the EPCA exclusion, a transformer's tap range is determined by computing the percentage of the voltage difference between its lowest and highest voltage taps relative to the voltage of the lower tap, or, as the industry has traditionally done, by adding the sum of the percentages by which the highest and the lowest voltage taps deviate from the nominal voltage. (The traditional industry method is equivalent to the percentage of the difference between the lowest and highest voltage taps relative to the nominal voltage.) These two approaches generally yield two different results for tap range value for any given transformer with multiple voltage taps. For example, a 600-volt primary transformer with two 2.5-percent taps above and four 2.5-percent taps below the nominal, with the highest tap being 630 volts and the lowest 540 volts, would normally be referred to as having a tap range of 15 percent (i.e., 6 times 2.5 percent, or 90 volts as a percentage of 600 volts = 15 percent). Similarly, a 600-volt primary with three 2.5- percent taps above and three 2.5-percent taps below the nominal, with the highest tap being 645 volts and the lowest 555 volts, would also be referred to under the traditional industry approach as having a tap range of 15 percent. However, if the tap percentages for these transformers were calculated as a percentage of the voltage rating of the lowest tap (540 volts and 555 volts in these examples), these two transformers would have a tap range of 16.2 percent and a 16.7 percent, respectively. The Department believes that EPCA's exclusion of transformers with a tap range of 20 percent or more is best construed as reflecting standard industry practice, such that tap ranges do not vary with the voltage rating of the lowest tap. Rather, tap range should be calculated, and excluded transformers identified, based on the industry practice of calculating the transformer's percent tap range relative to the nominal voltage of the transformer. Accordingly, the Department interprets EPCA as excluding transformers from the definition of ``distribution transformer'' when the aggregate of the transformer's highest to lowest tap voltages, relative to the nominal voltage, equals at least 20 percent. In section 431.192 of today's rule, the Department has incorporated this interpretation into its regulations by adding clarifying language to amend the regulation containing this exclusion that it adapted from EPCA in 70 FR 60416. The Department also notes that EPCA includes this exclusion in a separate paragraph, rather than in the list that comprises the other exclusions from the definition of ``distribution transformer.'' (42 U.S.C. 6291(35)(B)(i)-(ii)) See 70 FR 60416. To present this exclusion in the same format as the other exclusions, in section 431.192 of today's rule the Department has added ``Transformer with Tap Range of 20 percent or more'' to the list of exclusions and defined that term using the EPCA language that contains the exclusion, modified as just indicated. As indicated above, the Department had proposed in the SNOPR to exclude transformers with tap ranges greater than 15 percent. 69 FR 45110, 45420-22. Pemco, a manufacturer, expressed the concern that, if the Department declines to adopt efficiency standards for distribution transformers with a tap range of greater than 15 percent (currently the standard tap range for low voltage dry-type transformers), manufacturers might begin producing transformers with a slightly larger tap range, and such transformers would not be covered by standards. (Pemco, No. 48 at p. 2) That could create a significant loophole under the regulations. Since the 20-percent tap range is larger than the previously proposed 15-percent range, exclusion of transformers with tap ranges of at least 20 percent should reduce the risk that transformers with slightly larger tap ranges would be produced in order to avoid coverage. But that risk will not be completely eliminated. The exclusion of special impedance transformers, as provided in EPCA, as recently incorporated by DOE into 10 CFR section 431.192, and as previously proposed by DOE in the SNOPR, raises a similar issue. The issue is brought into focus by DOE's proposed definition for these transformers in the SNOPR. The proposed definition specified a normal impedance range for each standard kVA rating, and stated that a ``special-impedance transformer'' would be any transformer with an impedance outside the applicable range. Any such transformer would not be a ``distribution transformer'' covered by the proposed rule. 69 FR 45510-11, 45520-22. No commenter objected to this exclusion, and only one specifically addressed it. Howard Industries recommends that DOE replace its proposed normal impedance ranges with ranges included in Howard's comments, which are more in line with ranges ANSI uses to delineate special impedance transformers and on which most utility systems are based. (Howard, No. 55 at p. 3) For most kVA levels, DOE's proposed ranges are broader than Howard's. Hence, DOE's ranges would result in exclusion of fewer transformers, by classifying fewer as ``special impedance.'' In its revised test procedure document, NEMA TP 2-2005, NEMA incorporated DOE's proposed normal impedance ranges. (NEMA, No. 60 Attachment 1 at pp. 5-6) The Department is concerned that some transformers designed for electricity distribution could be manufactured with impedances outside normal ranges so that they would not be subject to otherwise applicable efficiency standards. Such transformers could be less expensive to manufacture than normal impedance transformers manufactured in compliance with the standards, and therefore could have a competitive advantage over standards-compliant distribution transformers. If this occurred, it would subvert the standards. At best, the manufacturer(s) of such new, non-complying transformers would sell them in place of complying products they would otherwise have sold, and the product would have a share of the market for which DOE analysis demonstrated that standards were technologically feasible and economically justified. This would reduce energy savings below the levels that standards under EPCA are designed to achieve, and reduce the benefits transformer consumers and the public would realize from the standards. At worst, to avoid significant losses of market share to the competing, non-complying transformer, other manufacturers would be forced to produce the same type of non-complying unit. In that case, all or most of the benefit of standards could be lost. The Department believes that use of the impedance ranges in the proposed rule, to delineate special impedance transformers, is a reasonable implementation of EPCA's exclusion of these transformers. This is the same approach, discussed above, that EPCA follows in its exclusion of transformers with non-standard tap ranges, in that only transformers that are considerably outside the normal ranges are excluded from coverage. To construe EPCA otherwise, that is, to construe it as excluding from coverage any transformer that falls outside the current, standard normal impedance ranges, could spawn a new generation of distribution transformers with impedances outside these ranges, which [[Page 24979]] would not be subject to Federal efficiency standards and test procedures. As just mentioned, this could subvert DOE's energy efficiency standards. NEMA's inclusion of DOE's proposed impedance ranges in the revised TP 2 standard provided to the Department, and the fact that only one commenter objected to them, indicate they are a sound basis for delineating the special impedance transformers that are excluded from coverage under today's rule and DOE's efficiency standards. Therefore, section 431.192 of today's rule retains the SNOPR's proposed definition of the ``special-impedance transformers'' excluded from the term ``distribution transformer.'' The Department recognizes that this approach may not prevent attempts to circumvent its efficiency requirements through manufacture of distribution transformers that appear to, or do, fall just within this exclusion or the exclusion of transformers with tap ranges of 20 percent or more. Such transformers could conceivably be manufactured for use in standard applications to distribute electricity in power distribution systems, but with efficiencies below those required by DOE's standards. Indeed, other exclusions from today's definition of distribution transformer could also be exploited to justify manufacture of transformers, for standard distribution applications, that do not meet DOE standards. The Department believes one such example may be the exclusion for drive (isolation) transformers. Such transformers can be similar to standard distribution transformers. A manufacturer might be able to produce and market, for standard distribution uses, a transformer that does not meet DOE efficiency standards but that clearly, or arguably meets, DOE's definition of ``drive (isolation) transformer,'' and claim that it is not a ``distribution transformer'' as defined by DOE. The Department intends to strictly and narrowly construe the exclusions from the definition of ``distribution transformer.'' It will also take appropriate steps, including enforcement action if necessary, if any manufacturer or other party erroneously invokes one of the exclusions as a basis for marketing a transformer that is a ``distribution transformer'' under today's rule but does not meet DOE standards. Moreover, to the extent transformers that do fall within the exclusions begin to be marketed for standard distribution applications, or find widespread use in such applications, DOE will examine whether re-defining the relevant exclusions, and/or legislative action, is warranted. b. Testing Transformers EPCA, and DOE's recent rule, also exclude a ``testing transformer'' from the definition of distribution transformer, 42 U.S.C. 6291(35)(B)(ii) and 70 FR 60416, as does section 431.192 of today's rule. The Department proposed this exclusion in the SNOPR. 63 FR 63363; 69 FR 45510. No stakeholder commented on it, in response to either the NOPR or SNOPR, except that in its revised TP 2-2005 document, NEMA deleted the following sentence from the SNOPR's proposed definition of ``testing transformer'': ``This type of transformer is also commonly known as an Instrument Transformer.'' (NEMA, No. 60 Attachment 1 at p. 7) An instrument transformer, however, is a type of transformer used for extending the voltage and current ranges of measuring and control instruments--such as voltmeters, ammeters, wattmeters, and relays--and is not the same as a testing transformer that supplies power to test electrical equipment. The Department recognizes that it erroneously included this sentence in the SNOPR definition of testing transformer and has deleted it from today's rule. The Department believes that this error would not have lead stakeholders to infer that DOE had proposed to specifically exclude instrument transformers from the definition of ``distribution transformer'' in the SNOPR, for two reasons. First, the remainder of the proposed definition of testing transformer clearly did not include instrument transformers, and second, contrary to the incorrect sentence, testing transformers are not commonly known as instrument transformers. Nevertheless, to the extent the proposed rule may have been read to specifically exclude instrument transformers, DOE believes such an exclusion is unnecessary and unwarranted. The revised NEMA TP 2-2005 contains no such exclusion. Moreover, an instrument transformer would be designed to handle less power than the lower capacity limits (10 kVA for liquid-immersed and 15 kVA for dry-type) in today's definition of distribution transformer, unless it was also designed to distribute electricity. In the former case, the transformer would not be covered under today's rule (or under the SNOPR) even absent a specific exclusion, rendering an exclusion unnecessary. In the latter case, it should be covered, and subject to DOE efficiency standards and test procedures, as a ``distribution transformer.'' Hence, there is no reason to consider further the exclusion of ``instrument transformers'' from today's definition of distribution transformer. c. Grounding Transformers Finally, section 431.192 of today's final rule contains a clarifying modification to the SNOPR's definition of ``grounding transformer.'' That definition referred to ``[a]n autotransformer with a zig-zag winding arrangement.'' 69 FR 45521. The Department has since become aware that this language is internally inconsistent, because an autotransformer with a zig-zag winding cannot be an autotransformer as defined in the rule, nor does it meet industry's conventional understanding of the term. The Department used the term autotransformer in the proposed grounding transformer definition to describe a type of transformer that does not have a separate physical secondary winding (unlike a conventional transformer). But although a three-phase autotransformer has three coils constituting the primary winding only, and no separate secondary winding, a section of each primary coil is ``tapped-off'' to create, in effect, a secondary winding. A grounding transformer, however, has only a primary winding, and no secondary winding output. In today's rule, in the definition of ``grounding transformer,'' the Department has replaced the reference to an autotransformer with a reference to a transformer with a primary winding and no secondary winding. 4. Other Exclusions Considered The bulk of the comments on the SNOPR's definition of distribution transformer advocated eliminating or narrowing exclusions DOE had proposed, or adding other exclusions. EPACT 2005 incorporated none of these exclusions into EPCA. In the SNOPR, DOE had proposed to exclude both harmonic mitigating transformers and K-factor (also referred to as ``harmonic tolerating'') transformers at K-13 and higher, largely based on its view that: (1) regulating them would not save significant amounts of energy, and (2) they are sufficiently expensive that there is little risk they would be purchased in place of more efficient transformers that would be subject to standards. 69 FR 45511, 45520-21. The Department also indicated its belief that few harmonic mitigating transformers would be commonly understood to be distribution transformers. 69 FR 45511. No commenter advocated retention of either exclusion, and several supported eliminating or narrowing them. [[Page 24980]] Supporting elimination of both exclusions, NEMA stated that the exclusions could be used to avoid efficiency standards. (NEMA, No. 39 at p. 2 and No. 47 at p. 2; Public Meeting Transcript, No. 42.11 at p. 22; NEMA No. 51 at p. 2) The Oregon Department of Energy raised doubts that these transformers would be unable to meet standards and saw no rationale for excluding them. (ODOE, No. 54 at p. 2) Harmonics Limited believes the market for them is large and growing, that use of K-rated transformers to circumvent existing standards has resulted in greater energy consumption, and harmonic transformers can both comply with standards and address harmonics issues. (Harmonics Limited, No. 50 at p. 1) ACME and Pemco advocated elimination of the exclusion for K- factor transformers (Public Meeting Transcript, No. 42.11 at pp. 32-33; Pemco, No. 48 at p. 2), and EMS International Consulting, Inc. (EMS) advocated elimination of the exclusion for harmonic mitigating transformers. (EMS, No. 57 at p. 3) In addition, EMS recommended that DOE cover K-rated transformers (up to a certain level which EMS did not specify), and Federal Pacific recommended narrowing the K-factor exclusion for transformers rated up to 300 kVA and broadening it for transformers above 300 kVA, both on grounds similar to those advanced by commenters who advocated its elimination. (EMS, No. 57 at p. 2; FPT, No. 44 at pp. 2-3 and No. 52 at p. 2) Based on these comments, and upon further review, DOE has concluded there is not a sufficient basis at this point to exclude harmonic mitigating or K-factor transformers from the definition of distribution transformer. In essence, the Department proposed in the SNOPR to exclude these transformers on the grounds that they are not ``distribution transformers,'' and that energy conservation standards for them would fail to meet the EPCA criteria in 42 U.S.C. 6317(a)(1) because such standards would not save substantial amounts of energy and/or be economically justified. Concerning the first point, as discussed above, EPCA, as amended in EPACT 2005, now defines the term ``distribution transformer.'' Harmonic mitigating and K-factor transformers do not per se fail to meet the numerical criteria in this definition, nor are they in the definition's list of excluded transformers. (42 U.S.C. 6291(35)(A) and (B)(i)-(ii)) EPCA, as recently amended, now authorizes DOE, however, to exclude by rule any transformer if it is designed for a special application, if it is unlikely to be used in a general purpose application, and if significant energy savings would not result from applying standards to it. (42 U.S.C. 6291(35)(B)(iii)) DOE previously relied on general information to support the views expressed in the SNOPR that harmonic mitigating and K-factor transformers would not be used for general purpose distribution applications, and that standards for them would not save significant amounts of energy. However, these conclusions were somewhat negated by the comments that these transformers could be sold in place of distribution transformers that are subject to standards, and that their use is increasingly common. Also, the Department is not aware of any more concrete information or analyses that address whether standards for these transformers could save energy. Thus, the Department now has no basis for excluding them under the new criteria in section 42 U.S.C. 6291(35)(B)(iii). For these reasons, DOE cannot conclude at this point that harmonic mitigating or K-factor transformers fail to meet the new EPCA definition of ``distribution transformer.'' Concerning the issue of whether these transformers should be excluded from DOE's definition of distribution transformer on the ground that energy conservation standards for them would not meet the criteria in 42 U.S.C. 6317(a)(1), as just set forth, there is insufficient basis to conclude that such standards would fail to save substantial amounts of energy. Furthermore, comments that harmonic mitigating and K-factor transformers could be manufactured to be in compliance with applicable efficiency standards without excessive cost suggest that standards for this equipment might well be economically justified. As with the issue of potential energy savings, the Department is not aware of any concrete information or analyses that suggest that standards for K-factor and harmonic mitigating transformers are not economically justified. Thus, the Department believes there is insufficient basis to conclude at this point that standards for these transformers would fail to meet the criteria in 42 U.S.C. 6317(a)(1). Some commenters suggest adding other exclusions to the definition of distribution transformer. Federal Pacific recommends that mining transformers (transformers installed inside a mine, inside equipment operated in a mine, or as a component of underground-digging or tunneling machinery) be excluded from the application of standards, because of their radically different loss characteristics and special dimensional constraints. (FPT, No. 52 at p. 2) Aligning with that comment, NEMA excludes mining transformers from its revised test procedure, TP 2-2005. (NEMA, No. 60, Attachment 1 at p. 1 and p. 4) Pemco asserts the need for an exclusion for transformers subject to dimensional, physical or design constraints, such as height limits, low temperature rise, special sound level requirements, weight limits, and suitability for high altitudes, which, according to Pemco, render it physically impossible or cost-prohibitive for these transformers to meet an efficiency standard. (Pemco, No. 48 at p. 1) Pemco also states that an exclusion is needed for retrofit transformers that have to be exactly the same as the ones they are replacing. (Pemco, No. 48 at p. 1-2) Similarly, Howard Industries advocates an exclusion for retrofit transformers, particularly underground and subway style transformers, on the grounds that they are subject to severe physical or electrical constraints, and would be unable to also meet energy conservation standards. (Public Meeting Transcript, No. 42.11 at p. 36; Howard, No. 55 at p. 3) However, although NEMA views the lack of an exclusion for retrofit transformers as problematic, it did not advocate such an exclusion because it has not formulated a definition or solution for this problem. (Public Meeting Transcript, No. 42.11 at p. 35) In the SNOPR, DOE did not propose to exclude any of the foregoing types of transformers from its proposed definition of distribution transformer. And as with K-factor and harmonic mitigating transformers, EPCA excludes none of them from its definition of distribution transformer. (42 U.S.C. 6291(35)(A) and (B)(i)-(ii)) Furthermore, the commenters who supported these additional exclusions have provided neither data as to the energy savings potential of standards for these transformers, nor information as to the likelihood they could be used in general purpose applications, and the Department is not aware of any concrete information or analyses that address these points. Therefore, the Department has no basis for excluding any of the transformers discussed in this paragraph under section 321(35)(B)(iii) of EPCA. (42 U.S.C. 6291(35)(B)(iii)) As to whether these transformers satisfy the criteria in 42 U.S.C. 6317(a)(1) for adopting test procedures and standards, the commenters have provided broad claims, but no technical or factual evidence, that addresses this issue. For these reasons, the Department has concluded that there is not a sufficient basis at this point to exclude harmonic mitigating or K- factor transformers, or [[Page 24981]] transformers subject to dimensional, physical or design constraints (including mining transformers), from today's definition of distribution transformer, and the definition does not exclude them. Rather, DOE will revisit the issues of whether, and to what extent, these transformers should be subject to standards, and at what levels, during the standards rulemaking for distribution transformers. As set forth in the Determination notice, the Department can best address issues as to the technological feasibility, economic justification and potential energy savings of energy conservation standards in the standards rulemaking, particularly during evaluation of proposed standard levels. 62 FR 54810. For many products, such as the types of distribution transformers at issue here, the question of whether standards are warranted cannot adequately be addressed without detailed information and analysis. Once the Department has decided to propose additional standard levels for distribution transformers, and has provided its analysis of the levels it has considered in depth, stakeholders will have an opportunity to comment. They can provide factual information and analysis on issues such as whether the proposed standard levels, or other levels, are warranted for particular classes of transformers, including the types just discussed. These comments could also address whether some types of transformers should be completely or partially excluded from standards, including, for example, whether a portion of K-factor transformers should be excluded as advocated by Federal Pacific. To the extent information developed during the standards rulemaking warrants exclusion of any type of transformers from coverage of the new standards (and test procedures), the Department will modify its definition of ``distribution transformer'' accordingly. 5. Rebuilt or Refurbished Distribution Transformers The Department did not specifically address in the SNOPR whether today's test procedure, as well as efficiency standards for distribution transformers, would apply to rebuilt distribution transformers (i.e., units on which one or more windings have been replaced), or to used or repaired distribution transformers. Nor does EPCA specifically address this question. Several commenters stated that the requirements should apply to rebuilt transformers, commonly referred to also as refurbished transformers. EMS and HVOLT stated that coverage of rebuilt units is necessary to close a potential loophole (EMS, No. 57 at p. 3; HVOLT, No. 53 at p. 3), and ERMCO stated that failure to cover rebuilt units might enable end-users to avoid standards by always rewinding failed units. (ERMCO, No. 49 at p. 2) Manufacturers appeared to be concerned that the increased cost of new, standards-compliant transformers would cause some customers to either purchase rebuilt, instead of new, transformers or rebuild existing transformers they already own. The Oregon Department of Energy agreed that rebuilt transformers should be required to meet new standards, indicating that high-quality rewinding practices can produce products that would meet standards while poor quality work can seriously degrade performance. (ODOE, No. 54 at p. 2) Some commenters also advocated coverage of used and/or repaired distribution transformers. (Howard, No. 55 at p. 3; EMS, No. 57 at p. 3) EPCA, in essence, seems to require only new distribution transformers, that have not been sold to end users, to meet Federal efficiency requirements. (42 U.S.C. 6302, 6316(a) and 6317(a)(1)) Thus, DOE probably lacks authority to require that used and repaired transformers comply with its test procedures and standards. The same may be true for rebuilt transformers, although for them a genuine issue does exist as to DOE's authority. Generally, EPCA provides that products, when ``manufactured,'' are subject to efficiency standards. (42 U.S.C. 6295(b)-(i) and 6313) It is arguable, but by no means clear, that rebuilt transformers could be considered to be ``manufactured'' again when they are rebuilt, and therefore be classified as new distribution transformers subject to DOE test procedures and standards. If, however, rebuilt products cannot be classified as newly manufactured, DOE would be subject to the same limitation on its authority to regulate them as applies to used and repaired products. In addition, contrary to the suggestion of some commenters that DOE regulate the efficiency of distribution transformers that their owners have re-wound, and where the transformer is not re-sold, EPCA provides authority to regulate only products that are sold, imported or otherwise placed in commerce. (42 U.S.C. 6291, 6311, and 6317(f)(1)) Throughout the history of its appliance efficiency program, DOE has not sought to regulate used units that have been re-conditioned or rebuilt, or have undergone major repairs. Regulating this part of the market, including the enforcement of efficiency requirements, could be an exceedingly complex and burdensome task. By and large, the Department believes EPCA indicates a Congressional intent that DOE focus on the market for new products, and believes that this is where the largest energy savings can be achieved. For distribution transformers in particular, the Department understands that at present rebuilt transformers are only a small part of the market. Moreover, the core dimensions of existing units are fixed, whereas for many newly manufactured transformers the dimensions of existing models could be enlarged in order to allow their efficiencies to increase. Therefore, at least initially, any standard for rebuilt transformers would likely have to be lower than for comparable newly manufactured units, and given the current size of the refurbished transformer market, it appears that significant energy savings could not be achieved by adopting standards for them. For all of these reasons, the Department does not intend to apply its standards and test procedures to used, repaired and rebuilt distribution transformers. Nevertheless, the Department recognizes that there may be some validity to the concerns raised by commenters about possible substitution of rebuilt for new transformers. If conditions change--for example, if rebuilt transformers become a larger segment of the transformer market--DOE will reconsider its decision not to subject them to energy conservation requirements. 6. Coverage of Liquid-Filled Transformers Finally, Howard Industries suggested, with regard to liquid-filled transformers, that the utility, municipal, and co-op segment of the market not be subject to mandatory standards, because it already uses life-cycle cost methods in purchasing products, and that only the commercial and industrial segment be subject to such standards. (Howard, No. 55 at p. 4) This is an interesting suggestion, but the Department believes it is untenable because the distribution transformers used in these two market segments are not sufficiently different from one another. If the Department were to adopt efficiency requirements for transformers currently sold in one sector but not the other, DOE believes that the transformers it left unregulated would promptly find their way into the regulated market. The Department is charged with prescribing test procedures and energy conservation standards for those distribution transformers for which it determines standards are technologically feasible [[Page 24982]] and economically justified and would result in significant energy savings. Liquid-immersed distribution transformers sold into the utility, municipal and co-op segments of the market are ``distribution transformers'' as defined in section 321(35) of EPCA, and, because they clearly are designed for general purpose applications, DOE could not exclude them under paragraph (B)(iii) of that section. (42 U.S.C. 6291(35)) Moreover, in October 1997, the Department made a determination that energy conservation standards for liquid-immersed distribution transformers would appear to be technologically feasible and economically justified, and to result in significant energy savings. 62 FR 54816. For these reasons, today's definition of ``distribution transformer'' does not exclude liquid-immersed transformers, nor any subset of these transformers destined for any particular end-user or market segment. C. Test Procedure for Distribution Transformers 1. General Discussion The Department developed the test method in today's final rule (Appendix A to Subpart K of Part 431) in order to have a single, primary reference that would clearly set forth all testing requirements for distribution transformers that may be covered by EPCA energy conservation standards. Almost in its entirety, the test method closely follows NEMA TP 2-1998 and the following four widely used IEEE standards: (1) IEEE C57.12.90-1999, ``IEEE Standard Test Code for Liquid-Immersed Distribution, Power and Regulating Transformers and IEEE Guide for Short Circuit Testing of Distribution and Power Transformers,'' (2) IEEE C57.12.91-2001, ``IEEE Standard Test Code for Dry-Type Distribution and Power Transformers,'' (3) IEEE C57.12.00- 2000, ``IEEE Standard General Requirements for Liquid-Immersed Distribution, Power and Regulating Transformers,'' and (4) IEEE C57.12.01-1998, ``IEEE Standard General Requirements for Dry-Type Distribution and Power Transformers Including those with Solid Cast and/or Resin Encapsulated Windings.'' As discussed in the SNOPR, the DOE did not propose to adopt NEMA TP 2-1998 verbatim as the DOE test method because of concerns about whether TP 2-1998 was sufficiently clear, detailed and accurate to serve as the DOE test procedure. 69 FR 45508-09. The Department had also identified problems with the clarity and level of detail in TP 2- 1998 in the 1998 proposed rule. 63 FR 63362. Nor did the Department propose to incorporate the four IEEE standards by reference. As stated in the SNOPR, that would require users to consult several reference documents in order to construct the test procedure, whereas having a single reference test procedure would reduce the potential of misinterpreting testing requirements and would enhance the convenience to users. In addition the IEEE standards include test methods not only for distribution transformers, but also for much larger power transformers that are not covered by the DOE test procedure. Nevertheless, the Department relied heavily on techniques and methods from NEMA TP 2-1998 and the four IEEE standards in developing the proposed test procedure and today's final test procedure. EPACT 2005, which the President signed into law on August 8, 2005, amended EPCA in effect to direct the Department to develop a test procedure for distribution transformers that is ``based on'' NEMA TP 2- 1998. (42 U.S.C. 6293(b)(10)). In the SNOPR, DOE stated that it had ``adapted virtually all of the provisions of the [proposed ] test procedure from NEMA TP 2[-1998] and the * * * four widely used IEEE standards'' just cited, and had used NEMA TP 2-1998 to develop the proposed test procedure. 69 FR 45508. The Department did not receive any comments from stakeholders indicating that they took issue with these statements. As stated above, today's testing methods are largely the same as those proposed in the SNOPR. Thus, as also set forth above, NEMA TP 2-1998 and the IEEE standards are the bases for these test methods. Indeed, because NEMA TP 2-1998 is based on the IEEE standards, and represents an attempt to incorporate them into a single document, any test method that incorporates the substance of these standards would conform to TP 2-1998. Furthermore, today's test methods and those in NEMA TP 2-1998 are entirely consistent with one another. For all of these reasons, it can be fairly stated that today's test procedure is ``based on'' NEMA TP 2-1998, within the meaning of 42 U.S.C. 6293(b)(10), and satisfies the Congressional intent that the DOE test procedure reflect the content of TP 2.\6\ --------------------------------------------------------------------------- \6\ Although NEMA TP 2-1998 contains a sampling plan for establishing compliance with prescribed efficiency levels, the compliance sampling plan in today's rule, which is discussed in section II-E below, is not based on the plan in TP 2. EPACT 2005 mandates that the Department use 12 industry or voluntary test procedures, each for a different type of product, as the basis for DOE test procedures for those products. All contain test methods, but NEMA TP 2-1998 appears to be the only one that contains a sampling plan. Moreover, for the reasons explained in the SNOPR, that sampling plan is inconsistent with the standards and labeling requirements in EPCA for distribution transformers, and with basic, long-standing elements of DOE's appliance efficiency program. 69 FR 45514. Congress gave no indication in enacting EPACT 2005 that it intended its mandate for use of NEMA TP 2-1998 to change EPCA's standards and labeling requirements, or the structure of DOE's program, for this product. For these reasons, DOE believes Congress intended to require that DOE's test methods for distribution transformers, but not its compliance sampling plan, be based on NEMA TP 2-1998. Accordingly, the Department construes 42 U.S.C. 6393(b)(10) as not affecting the content of its compliance sampling plan for distribution transformers. --------------------------------------------------------------------------- In response to the SNOPR, several commenters requested that DOE rely on existing testing standards as much as possible, as it does for other products, instead of adopting a new stand-alone test procedure. (FPT, No. 44 at p. 7; Public Meeting Transcript, No. 42.11 at pp. 49, 54-55) NEMA expressed concern that the Department's proposal differed significantly from the existing testing methods (NEMA TP 2-1998 and IEEE), and asserted that industry engineers would need to become experts in the new method, and that this could be a difficult, time consuming process. (Public Meeting Transcript, No. 42.11 at pp. 49-51, 53, 60) The Department recognizes that there will be some burden on manufacturers resulting from today's stand-alone test procedure. This burden, however, should be minimal. The test methods in the DOE test procedure are virtually identical to those in the TP 2-1998 and IEEE standards, and require the same steps for determining losses and calculating efficiency. Comments from stakeholders offered no specifics as to why use of the DOE test procedure would be burdensome for manufacturers and identified no specific provisions in DOE's proposed test procedure that deviate from the TP 2-1998 or IEEE standards. Furthermore, in NEMA's revised TP 2 document, TP 2-2005, the test method closely parallels the SNOPR rule language. (NEMA, No. 60, Attachment 1) This indicates that, upon further reflection, NEMA believes use of DOE's proposed test procedure would not be burdensome for manufacturers. Federal Pacific states that manufacturers will still be required to reference industry standards, in addition to DOE standards. (FPT, No. 44 at p. 6) The Department believes that due to the similarities between today's test procedure and the TP 2-1998 and IEEE documents, a manufacturer following the DOE test procedure would also be consistent with NEMA TP 2-1998 and the IEEE test procedures. [[Page 24983]] Therefore, manufacturers would not have to take separate steps to assure compliance with each test procedure. Federal Pacific also asserts that a stand-alone DOE test procedure may become a problem if IEEE, ANSI, or NEMA adopt changes to their standards because the changes may have to be incorporated into the DOE test procedure. (FPT, No. 44 at pp. 6-7) This issue is not unique to transformers, and exists whether DOE has a stand-alone test procedure or incorporates by reference one or more industry standards, such as the IEEE test methods for transformers. The Department regulates many other consumer products and commercial equipment, all of which have test procedures. Some of these are DOE-developed, stand-alone test methods, and others incorporate by reference industry standards. Even in the latter situations, no change to an industry standard becomes part of the DOE test procedure unless and until the Department adopts it. In the event of an industry-consensus revision to the test methods for distribution transformers, the Department would consider all petitions from manufacturers seeking to incorporate those changes into today's test procedure. In sum, the Department continues to believe that having a single, reference test procedure document would enhance the convenience to users and reduce the potential for misinterpretation of testing requirements. Today's final rule adheres to that approach rather than incorporating provisions from the existing industry test procedures. Commenters did not disagree with the Department's decision not to adopt NEMA TP 2-1998, without modification, as the DOE test procedure. In written comments and during the SNOPR public workshop meeting, however, NEMA proposed that DOE, NEMA and other stakeholders work together to reach a consensus on needed revisions of TP 2, so that NEMA could revise it and DOE could then incorporate it by reference. (NEMA, No. 39 at p. 1; Public Meeting Transcript, No. 42.11 at pp. 22, 49-51, 53, 56-57) NEMA has now completed its revision of TP 2, informing DOE that it obtained approval from its membership and adopted TP 2-2005 on September 19, 2005. (NEMA did not indicate whether other stakeholders were involved in this process.) NEMA proposes that DOE adopt the TP 2- 2005 document as its test procedure for distribution transformers, and reference it in the final rule for such test procedures. (NEMA, No. 60 at p.1) The Department believes that such action would be inappropriate. The Department recognizes NEMA's efforts to revise TP 2 and appreciates NEMA's openness, including its submission of a draft TP 2-200X document in March 2005 (NEMA, No. 59 Attachment 1) and the final TP 2-2005 document in September 2005 (NEMA, No. 60 Attachment 1). These submissions have made a definite contribution to this proceeding. As indicated elsewhere in this preamble, these submissions identified changes that were needed in the proposed rule, and that DOE has adopted in today's final rule. These changes include modification of the definition of load loss and several editorial changes. As also discussed in this preamble, however, stakeholder comments submitted in response to the SNOPR, as well as DOE's own review, have resulted in many other changes that clarify and improve the proposed test procedure. These additional changes include provisions for testing harmonic transformers, clarification of the language concerning test set neutrals, and an alternative to the proposed method for providing short-circuiting conductors. None of the additional changes are reflected in NEMA's final TP 2-2005 document. Moreover, TP 2-2005 contains a number of changes from the SNOPR that should not be included in today's final rule, such as the exclusion of mining transformers. For these reasons, the Department is not incorporating TP 2-2005 as its test procedure rule for distribution transformers. That said, in the future, the Department would consider incorporating verbatim the NEMA test method in TP 2 so long as its substance conforms with the test method then in effect. 2. Specific Provisions of the Test Procedure a. Testing Harmonic Transformers As discussed earlier in this notice, the Department proposed in the SNOPR to exclude both harmonic tolerating (K-factor) transformers with a K-factor of K-13 or greater and harmonic mitigating transformers from the definition of distribution transformer, but today's definition includes both of these types of transformers. Several stakeholders who recommended removal of the exemption for these transformers, also recommended that the test procedure should require testing using a linear load profile (K=1), namely, using the fundamental-frequency test current in the measurement of load loss. (NEMA, No. 47 at p. 1; NEMA, No 51 at p. 1; HVOLT, No. 53 at pp. 2-3; PQI, No. 56 at p. 3) Federal Pacific stated that absent an industry standard harmonic load profile, K=1 is the only available method for consistently testing transformers designed for harmonic currents. (Public Meeting Transcript, No. 42.11 at pp. 33-34) Federal Pacific also commented that it uses K=1 to test K-factor transformers when a customer specifies a K-factor transformer but also wants it to meet TP 1 efficiency levels. (FPT, No. 44 at p. 2) When a harmonic transformer is tested with a linear load, however, its measured losses are lower than the losses it would experience under non-linear loads. Therefore, the efficiency rating that results from testing the transformer with a linear load will be higher than the actual efficiency of the harmonic transformer during normal operation (i.e., when the transformer is subject to non-linear loads). Nevertheless, as one commenter indicated, testing harmonic transformers at linear loads does offer a straight-forward testing method that avoids over-complicating the issue. (FPT, No. 44 at p. 3, and No. 52 at p. 2) The Department believes that if its efficiency standards become applicable to K-factor and harmonic mitigating transformers, more efficient harmonic transformers will be manufactured than if the standard did not apply to them. DOE agrees with the above comments, and therefore today's final rule, in Section 4.1 of the test procedure, requires that manufacturers test these transformers using fundamental- frequency test current (corresponding to a linear (K=1)) load. b. Determining Winding Temperatures Today's test procedure expands the options available to manufacturers for determining the winding temperature of liquid immersed transformers. IEEE C.57.12.90-1999 provides that the temperature of windings of a liquid-immersed transformer is assumed to be the same as the temperature of the liquid in which the windings are immersed. Adding specificity to this approach, the Department proposed in the SNOPR that the winding temperature of a liquid-immersed distribution transformer would be the average of two temperature sensing devices applied to the outside of the transformer tank, at top oil level and at the bottom of the tank. Howard Industries questioned the accuracy of this method for determining winding temperatures, and recommended instead that DOE require direct (internal) top and bottom measurement of the liquid temperature to determine winding temperature. (Howard, No. 45 at p. 1) [[Page 24984]] The Department understands that the most common method in the distribution transformer industry for estimating the temperature of liquid immersed windings is by using thermocouples attached to the exterior of the transformer tank, as proposed in the SNOPR. Furthermore, as also proposed in the SNOPR, today's rule requires that winding temperature be measured only after certain conditions have stabilized, which provides greater assurance that these external measurements are a good estimate of the winding temperature. For these reasons, DOE believes Howard's recommendation that DOE require direct top and bottom measurement of the liquid could impose significant and unnecessary burdens on manufacturers. Nevertheless, the Department recognizes that such direct measurements would be at least as accurate as external measurements, and that testers who prefer to make direct measurements should be allowed to do so. Therefore, today's final rule allows manufacturers to determine the winding temperature using either exterior tank measurements or direct liquid measurements. The Department understands that testers normally make external tank temperature measurements using thermocouples that are designed to be thermally insulated from the surrounding environment. The use of insulated thermocouples reduces error in the temperature measurement, and offers greater accuracy in determining the winding temperatures. Therefore, the Department has modified the language in proposed section 3.2.1 to clarify that these external temperature measurements must involve the use of insulated thermocouples. In addition, proposed section 3.2.1 would give manufacturers the choice of waiting to measure winding temperature until either (a) the windings have been under insulating liquid with no excitation and no current in the windings for four hours before the direct current (dc) resistance is measured; or (b) the temperature of the insulating liquid has stabilized, and the difference between the top and bottom temperature does not exceed 5 [deg]C. These conditions each provide assurance that the temperature of the windings has stabilized when manufacturers measure it. The Department took these two conditions from IEEE C57.12.90-1999, which requires that both be met when the tester measures the winding temperature. Howard Industries commented that the DOE test procedure should also require that both be met, to be consistent with the IEEE standard. (Howard, No. 45 at p. 2) The Department recognizes the value of being consistent with IEEE. However, the Department does not believe that for distribution transformers, meeting both conditions is necessary. The IEEE standard encompasses kVA ratings of transformers that are much larger (up to 500,000 kVA and larger) than those covered by today's final rule (no larger than 2,500 kVA). The Department believes that for distribution transformers, which are relatively small compared to many of the kVA ratings addressed by IEEE, manufacturers can achieve accurate winding temperature readings if one of these two conditions is met. Therefore, the language in today's final rule does not require that both conditions be met. The Department has also made some clarifying and editorial changes to the language of section 3.2.2 in today's rule, which concerns determination of the winding temperature of dry-type transformers. Section 5.2 of IEEE C57.12.91-2001 allows for the determination of such winding temperatures, for both ventilated and sealed units, through either direct measurement or use of the ambient temperature of the test area. The IEEE standard permits the latter, however, only under certain conditions. The Department intended to incorporate the IEEE approach in section 3.2.2 of the test procedure in the SNOPR, but that language appeared instead to permit use of the ambient temperature only in determining the winding temperatures of sealed units, and to apply the conditions for use of ambient temperature also to use of direct measurement. Section 3.2.2 of today's final rule contains revised language that clearly incorporates the IEEE approach. c. Test Set Neutrals Part 4.0 of the proposed test procedure set forth provisions for determining transformer losses, including requirements for the test circuits and test sets used during testing. Section 4.3.3 of the SNOPR required use of a ``four-wire, three-wattmeter test circuit,'' and, for delta-wound transformers, use of ``a neutral deriving transformer * * * to obtain neutral and ground.'' Commenting on this section, Howard Industries stated that ``[t]here are options for the design of the power source used to test distribution transformers,'' and recommended adding to this section the phrase ``unless the source is WYE connected.'' (Howard, No. 45 at p. 2) Although the Department does not agree with the change Howard recommended, this comment indicates a need to clarify section 4.4.3. A wye-connected power source can be used to test either a wye-or delta-wound transformer, and a neutral deriving transformer is not needed, and rarely if ever used, to obtain a neutral and ground. The Department has added language to today's final rule to make clear that the test procedure allows the use of wye- and delta- wound power source transformers for testing, and only requires use of a neutral deriving transformer in conjunction with a delta-wound transformer. Today's final rule also contains a few editorial changes with respect to section 4.3.3 of the SNOPR test procedure. First, because the first sentence of that section, as proposed, concerned three-phase distribution transformers generally and not merely test set neutrals, DOE has now moved the language to section 4.3.2. Second, the remaining language of section 4.4.3 in the SNOPR related only to testing of three-phase transformers, and therefore it has been renumbered in today's final rule as section 4.3.2.3 (part of Three-Phase Test Sets). Third, to improve clarity, the term ``grounding transformer'' has replaced the term ``neutral deriving transformer'' throughout the test procedure. This is because ``grounding transformer'' is more widely understood in the distribution transformer community as referring to the type of transformer used to create a grounded neutral for a delta- wound transformer. d. Losses From Auxiliary Devices Sections 4.4.3.1 and 4.5.3.1 of the SNOPR test procedure required losses attributable to test instrumentation to be deducted from measured no-load and load losses, respectively, in determining the total losses of a transformer. Commenters suggested that the final rule also require manufacturers, in determining load losses, to exclude those losses attributable to auxiliary devices installed on a distribution transformer but which are separate from the transformer, such as circuit breakers, fuses, and switches, because such losses are not related to losses from the transformer's windings. (Howard, No. 45 at p. 1, and No. 55 at p. 3; ERMCO, No. 49 at pp. 1-2) These commenters raise a valid concern, although today's final rule permits, but does not require, the deduction or exclusion of auxiliary device losses from the measured load losses. When a distribution transformer is equipped with auxiliary devices (generally specified by the customer), these devices produce some energy losses, albeit relatively small in comparison to the unit's total losses. [[Page 24985]] DOE anticipates that its efficiency standards would apply to distribution transformers without regard to whether auxiliary devices are installed. The standards therefore would not govern the efficiency of auxiliary devices, but instead would apply to the performance of the basic transformer (the equipment to which the auxiliary devices are added). Because the Department is concerned that some manufacturers may find it burdensome or problematic to exclude all or part of the losses attributable to auxiliary devices, each manufacturer will have the discretion to include or exclude some or all of the auxiliary-device losses in the determination of load losses. Although exclusion of all such losses would result in a more accurate efficiency rating for the transformer being tested, inclusion of such losses would understate the efficiency rating of the transformer, and not circumvent any applicable standard. The purchaser would be receiving a slightly more efficient piece of equipment than indicated by the rating. This approach is consistent with the Department's regulations in other portions of its appliance standards program, which generally allow manufacturers the discretion to rate their products at efficiencies lower than could be justified by test results. e.g., 10 CFR section 430.24. It is also consistent with the IEEE standards, which set forth test methods for distribution transformers but do not require exclusion of losses from accessories in measuring transformer losses. Today's final rule also takes this same approach for instrumentation losses. For the reasons just stated, the Department believes DOE's test procedure should permit, but not require, (as proposed in the SNOPR) that manufacturers deduct instrumentation losses from total losses in determining transformer efficiencies. This will allow manufacturers greater flexibility than was provided by the SNOPR proposal, with no detriment to the public or circumvention of any applicable standard. Therefore, section 4.5.3.1 of today's test procedure allows manufacturers to exclude from measured load losses those losses attributable to auxiliary devices, and sections 4.4.3.1 and 4.5.3.1 allow exclusion of losses attributable to testing instruments from both no-load and load losses. The Department has, however, slightly modified the SNOPR language in proposed sections 4.4.3.1 and 4.5.3.1 that identified the sources of instrumentation losses. The final rule omits the reference to ``ammeter'' because, upon further consideration, DOE now realizes that no measured transformer losses are attributable to this instrument. The Department has also made two other similar modifications. The term ``wattmeter'' is replaced by ``wattmeter voltage circuit'' because a wattmeter experiences losses through both its current and voltage circuits, but only losses from the voltage circuit are part of measured transformer losses. The term ``instrument transformer'' is changed to ``voltage transformer'' because ``instrument transformer'' refers to both current and voltage transformers, both of which experience losses, and it is only losses of the voltage transformer that are part of measured transformer losses and should be deducted from the total measured losses. None of these revisions is a departure from the substance of the SNOPR. Rather they improve the precision of the final rule and reduce the risk of misinterpretation or misapplication of the test procedure. With respect to how to deduct the losses from auxiliary devices from the measured load losses, one commenter suggested exclusion of the losses from auxiliary devices by removing the devices (Howard, No. 45 at p. 1), and another suggested excluding the losses by deducting them from measured losses. (ERMCO, No. 49 at p. 2) Because the Department believes both approaches are sound, and would produce the same results, today's final rule allows manufacturers the flexibility of using either one. e. Testing of Multiple Voltage Transformers Today's final rule also clarifies treatment of dual-or multiple- voltage transformers under the Department's test procedure. Distribution transformers can be designed with multiple voltage ratings on the primary and/or secondary windings. Efficiency testing for these units can be problematic because, for a given transformer and kVA rating, DOE understands that each transformer will have two or more different efficiencies, i.e., one efficiency for each of its winding configurations. In other words, each multiple voltage transformer experiences different losses (and therefore different efficiencies) when operated at different voltages. This difference in losses is due to differences in current associated with the voltage configuration selected, and generally, the lower voltage ratings will have the higher losses and therefore lower efficiency ratings. The Department intends, however, to have just one standard level that would apply to all transformers in a given class, regardless of the voltage or voltages at which each transformer in that class is designed to operate. Howard Industries commented that the efficiency measurement on series or multiple voltage transformers should always be based on the highest voltage configuration. (Howard, No. 45 at p. 2; Howard, No. 55 at p. 3) The Department is unable to accept this recommendation, because a transformer designed to operate at more than one nominal voltage would have to comply with the standard at all voltage ratings. Because the lowest voltage ratings would generally have the lowest efficiency ratings, to ensure that each multiple voltage transformer complies with the applicable standard at each voltage at which it operates, the manufacturer would have to determine the transformer's efficiency by testing it (or by calculating its efficiency using an AEDM), either at the voltage rating at which the highest losses occur-- generally the lowest voltage--or at each voltage at which the transformer operates. Therefore, today's final rule requires the manufacturer to determine the basic model's efficiency either at the voltage at which the highest losses occur or at each voltage at which the transformer is rated to operate. f. Short-Circuiting Conductor Strap Section 4.5.2 of the SNOPR stated that in the test for measuring load losses, ``[t]he conductors used to short-circuit the windings must have a cross-sectional area equal to, or greater than, the corresponding transformer leads.'' 69 FR 45530. Howard Industries asserted that other methods exist for providing short-circuiting conductors or their equivalent, and that the test procedure should also permit manufacturers to use any short circuiting conductor that is ``of sufficient size to limit the tare watts to less than 10 percent of the transformer load losses.'' (Howard, No. 45 at p. 2) In industry parlance, ``tare watts'' are losses associated with the test set-up, and in this instance refer to losses in the short-circuiting conductor. The short-circuiting conductor losses incurred during testing are included in the measured load losses for the transformer being tested, but, as discussed above, may be deducted from the measured load losses. The Department's proposed requirement of a cross sectional area equal to, or greater than, the corresponding transformer leads is based on use of a simple, routine method for short-circuiting the windings by means of the shortest practical conductor between the terminals of the transformer. The Department believes this proposed [[Page 24986]] requirement would limit the short-circuiting conductor losses to approximately one to three percent of the transformer's measured load losses. Howard's recommended revision contemplates allowing a less conventional approach, and would allow losses in the short-circuiting strap to be as much as ten percent of the load losses. The Department's proposal generally follows the approach taken in the relevant IEEE standards. The IEEE standards are voluntary, however, and do not preclude manufacturers from using new, improved methods that do not strictly adhere to those standards. But incorporating the standards into DOE's test procedure would make them mandatory and limit manufacturer flexibility to use such new methods. The determination of losses in the short-circuiting strap is subject to errors, which will contribute to the overall error in the determination of transformer losses because manufacturers can deduct the short-circuiting losses from the measured load losses in making their determination of total losses. DOE is concerned that increasing the permissible losses, as proposed by Howard, might also increase the overall error--perhaps beyond acceptable limits--unless appropriate care is exercised to determine the higher losses of the short- circuiting conductor. Today's rule, however, does not permit automatic deduction of 10 percent or any other fixed percent of losses denominated as occurring in the short-circuiting conductor or any other instrument or device. Instead, the rule provides that, in determining measured load losses, manufacturers may deduct only the losses ``attributable'' to the short-circuiting conductor (as well as certain other instruments and devices). Thus, the rule allows deduction only of actual losses, i.e., losses determined with a reasonable degree of accuracy. Moreover, notwithstanding any increase in the amount of error that would be introduced by adoption of Howard's proposal in today's rule, the overall limit on the range of error for measurement of power losses remains at 3 percent, as proposed in the SNOPR. Thus, adoption of the proposal would not have a significant effect on overall results determined under the test procedure. For these reasons, today's rule allows manufacturers to use alternatives to the method specified in proposed section 4.5.2(b) for providing short-circuiting conductors, so long as such alternatives do not result in losses that are 10 percent or more of the total load losses. The language to implement this approach, however, varies slightly from the language proposed by Howard Industries. Howard's proposed language could be construed as permitting losses as great as 10 percent, even if a manufacturer uses the method prescribed in the SNOPR. The Department sees no reason to allow that, and believes losses of that magnitude should be permitted only if a manufacturer uses alternative methods. g. Revisions Suggested by NEMA in TP 2-2005 As stated above, NEMA prepared a revised version of NEMA TP 2-1998 and submitted it to the Department for review. (NEMA, No. 60 at p. 1) The Department compared this document, designated by NEMA as TP 2-2005 (NEMA, No. 60 Attachment 1), with the rule language proposed in the SNOPR to identify all changes to the SNOPR's methods, procedures and language. For the purposes of this final rule, DOE is treating the differences that it identified as written comments submitted by NEMA on the SNOPR. The following discussion examines the significant differences that DOE has not addressed elsewhere in this notice. NEMA's TP 2-2005 contains a definition for ``tolerances on measured losses'' which was not provided in the SNOPR and which reads: ``Measured values of electrical power, voltages, currents, resistances, and temperature are used in the calculations of reported data. To ensure sufficient accuracy in the measured and calculated data, the test system accuracy for each measurement shall fall within the limits specified in Table 4.'' (NEMA, No. 60 Attachment 1, p. 8) The Department has not added this definition to the list of terms it is defining in the final rule because it believes such a definition would not further clarify or add substance to the rule. Except for its range for frequency measurement accuracy, Table 2-1 \7\ of TP 2-2005 sets forth the same accuracy ranges as are contained in Table 2.1 in the SNOPR. Moreover, section 2.0 of DOE's test procedure states that ``measurement error will be limited to the values shown in Table 2.1.'' 69 FR 45524. The Department believes these accuracy requirements for the measurement of losses are sufficient and clear, and a definition of ``tolerances on measured losses'' is therefore unnecessary. --------------------------------------------------------------------------- \7\ In the March 2005 draft of NEMA TP 2-200X, Table 4, Measurement Accuracy Requirements, was the correct citation. In preparing the final draft, Table 4 was re-labeled as Table 2-1, and all the values remained the same. The language on page 8 of TP 2- 2005 makes references to Table 4; however, this appears to be a typographical error as there is no Table 4 in TP 2-2005. --------------------------------------------------------------------------- As just indicated, Table 2-1 of NEMA TP 2-2005 contains an accuracy range for frequency measurement of 0.5 percent. (NEMA, No. 60 Attachment 1, p. 9) The Department has decided not to add such a provision to Table 2.1 of today's final rule, however, for the following reasons. First, neither TP 2-1998 nor the widely-used IEEE test methods, which DOE used to develop today's test procedure, contain an accuracy range for frequency measurement. Secondly, except in unusual cases, it is not needed. When power is supplied from the utility grid, frequency is very accurate and there is no need to prescribe a frequency accuracy or require manufacturers to take steps to assure accuracy. The Department would only require manufacturers to assure accuracy when the power supply is not synchronized with an electric utility grid, and this is addressed in sections 4.4.2 and 4.5.2 of the SNOPR. Thus, the Department has not added a frequency accuracy range to Table 2.1. Compared to the SNOPR, NEMA's TP 2-2005 contains slightly different and longer definitions of ``load'' and ``no-load'' loss. The SNOPR reads that ``[l]oad loss means, for a distribution transformer, those losses incident to a specified load carried by the transformer, including losses in the windings as well as stray losses in the conducting parts of the transformer. It does not include no-load losses.'' NEMA's revised TP 2-2005 reads ``load loss: The load losses of a transformer are those losses incident to the carrying of a specified load by the transformer. Load losses include I\2\R loss in the windings due to load and eddy currents; stray losses due to leakage fluxes in the windings, core clamps, and other parts, and the loss due to circulating currents (if any) in parallel windings, or in parallel winding strands.'' (NEMA, No. 60 Attachment 1, p. 4) The Department has not modified its proposed definition of ``load loss,'' except by deleting the last sentence as NEMA did in TP 2-2005. The Department recognizes that inclusion of this last sentence would make the definition inaccurate, because an insignificant amount of no-load loss is included in the measurement of load loss. Also, retention of this sentence might incorrectly imply that manufacturers should subtract this extremely small amount of no-load loss from load-loss measurements, to determine load loss. However, DOE believes that the remainder of its proposed definition of ``load loss'' is clear and not susceptible [[Page 24987]] of misunderstanding, and its brevity is preferable to the approach in TP 2-2005. The description of the various components of ``load loss'' in the NEMA definition helps explain the causes of load loss, but neither alters nor clarifies the definition or the requirements that the definition delineates. Such explanation generally is not included in rule language. Concerning the definition of ``no-load loss,'' the Department's SNOPR reads: ``[n]o-load loss means those losses that are incident to the excitation of the transformer.'' NEMA's revised TP 2 definition reads: ``no-load (excitation) loss: No-load (excitation) losses are those losses that are incident to the excitation of the transformer. No-load (excitation) losses include core loss, dielectric loss, conductor loss in the winding due to excitation current, and conductor loss due to circulating current in parallel windings. These losses change with the excitation voltage.'' Again, the Department considers the SNOPR definition to be clear and complete for the purposes of this test procedure. As with its suggested definition of ``load loss,'' NEMA's definition of ``no-load loss'' adds information, but its list of components is explanatory rather than substantive, and DOE has concerns similar to those discussed for the ``load loss'' definition. For these reasons, the Department is not modifying, except as indicated, either the ``no-load loss'' or the ``load loss'' definitions. NEMA TP 2-2005 introduces a definition of ambient temperature. (NEMA, No. 60 Attachment 1, p. 3) This definition appears to be derived from the American Society of Heating, Refrigerating and Air- Conditioning Engineers (ASHRAE) Terminology of Heating, Ventilation, Air Conditioning, & Refrigeration (Second Edition) and has several elements that apply to types of transformers that are not distribution transformers. Therefore, it is not applicable to the Department's test procedure. Moreover, DOE believes that, in the context of today's final rule, ambient temperature clearly refers to the room temperature in the location where the measurements are being taken, as DOE intends. For these reasons, the Department believes a definition of ambient temperature is unnecessary in today's rule. Finally, NEMA TP 2-2005 contains a number of editorial changes to the language in the SNOPR's test methods. The Department has incorporated several of these, such as edits in the first paragraph of proposed section 6.1, in today's final rule. h. Language Corrections as to Conversion of the Resistance Measurement to the Reference Temperature and Conducting the No-Load Loss Test Section 3.5 of DOE's proposed test procedure provided an equation for correcting measured resistance to the resistance at the reference temperature. 69 FR 45527. One of the terms of this equation, Tk, consists of a temperature level for copper windings, another for aluminum windings, and a third level ``[w]here copper and aluminum windings are employed in the same transformer.'' However, a separate resistance measurement is performed for each winding of a distribution transformer. Section 3.5 provides for adjustment of each such measurement, and each winding will be either copper or aluminum, but not both. Therefore, the equation for adjusting the measured resistance need not, and should not, include a temperature level that contemplates the use of the two metals together, and in today's final rule, the Department has deleted from section 3.5 the language that includes such a temperature level. Section 4.4.2 of the proposed test procedure concerns testing for no-load losses. Proposed paragraph (b) of that section directed the tester to ``[e]nergize not less than 25 percent'' of either the high voltage or low voltage winding. 69 FR45530. The Department drew the 25 percent figure from section 8.2.3 of IEEE C57.12.90-2001 and C57.12.91- 2001, which recommend energizing 100 percent of the winding in conducting this test, but allow as low as 25 percent. The IEEE standards allow the 25 percent because they apply not only to distribution transformers but also to power transformers. Power transformers may require much higher voltages than are available in the power sources used in performing the no-load test. Distribution transformers, however, require much lower voltages, which can be accommodated by the available power sources. Moreover, distribution transformers rarely have a 25-percent voltage tap that would permit energizing a winding at 25 percent of its rated voltage, and DOE understands that instead, in testing distribution transformers for no- load losses, windings are energized to 100 percent of rated voltage. Hence, DOE has deleted from today's final rule the provision allowing testers to energize 25 percent or more of a winding. Proposed paragraph (c) of section 4.4.2 required certain conditions with respect to voltage during the no-load loss test, ``unless otherwise specified.'' 69 FR 45530. Once again, DOE drew the quoted language from IEEE standards, where it is included to accommodate testing as to characteristics other than efficiency, in situations where a transformer includes special features requested by a customer. Because this language has no application to efficiency testing, and such testing must always be conducted under the conditions specified in proposed paragraph (b), section 4.4.2(c) of today's final rule does not include this language. D. Basic Model 1. General Discussion Under the Department's energy conservation program, DOE has applied the ``basic model'' concept to alleviate burden on manufacturers, by reducing the amount of testing they must do to rate the efficiencies of their products. DOE's intent is that a manufacturer would treat each group of its models that have essentially identical energy consumption characteristics as a ``basic model,'' such that the manufacturer would derive the efficiency rating for all models in the group from testing sample units of these models. All of the models in the group would comprise the ``basic model,'' and they would all have the same efficiency rating. The proposed definition of basic model for distribution transformers implements this approach by permitting manufacturers to aggregate models that have the same energy consumption characteristics, but not models with different characteristics. Components of similar design can be substituted in a basic model without requiring additional testing if the represented measures of energy consumption continue to satisfy applicable provisions for sampling and testing. 2. Definition of a Basic Model In the SNOPR, the Department proposed a definition of ``basic model'' for distribution transformers that included essentially the same criteria as those contained in the definition proposed in the 1998 proposed rule, plus a requirement that the transformers included in the basic model ``not have any differentiating electrical, physical or functional features that affect energy consumption.'' DOE made several other modifications to the definition, and described these changes in the SNOPR. 69 FR 45512-13. NEMA commented that the SNOPR definition of ``basic model'' was too vague and needed clarification. (Public Meeting Transcript, No. 42.11 at pp. 22-23) Specifically NEMA was concerned [[Page 24988]] that the phrase added to the end of the basic model definition ``and do not have any differentiating electrical, physical, or functional features that affect energy consumption'' is unclear. (NEMA, No. 39 at p. 2) DOE believes that these general criteria for the creation of basic models are needed to allow manufacturers the flexibility to create basic model groupings that reflect product features that affect energy consumption. To address NEMA's concern, DOE is modifying the definition slightly to provide that voltage and basic impulse insulation level (BIL) rating are both examples of differentiating electrical features that would cause transformer models to be different basic models. DOE stated in the preamble of the SNOPR that each of these features would be a differentiating electrical characteristic, but the proposed definition itself did not include these examples. Additionally, NEMA noted it would prefer that the rule contain a table of basic models (NEMA, No. 39 at p. 2) or a tighter definition. (Public Meeting Transcript, No. 42.11 at p. 37) DOE believes that creation of a table of basic models would be impractical for several reasons. First, there are literally thousands of possible designs for any one kVA rating and combination of core steel and winding materials. Second, for DOE to attempt to identify both the energy consumption profile of each such combination of transformer features, as well as the combinations that have common profiles, would be an enormous undertaking. Third, to the extent that any significant number of these possible transformer variations is not produced, either now or in the future, effort may be wasted. And fourth, DOE believes that neither it nor industry can accurately anticipate all future design variations of distribution transformers. A table or other rigid definition, therefore, would (1) fail to provide for future designs, and/or (2) conflict with the rationale for using the ``basic model'' construct, and (3) force future designs to be grouped with models that do not share their energy consumption characteristics. As this last point indicates, NEMA's concern that the part of the definition quoted above could allow additional basic models at a later date is misplaced. To the extent that the definition would allow creation of additional basic models that subsume models with new energy consumption characteristics, this indicates the definition is sound rather than in need of alteration. DOE recognizes that, given the large number of variations in distribution transformer design, many manufacturers produce numerous basic models. The Department is aware, however, of no reasonable way to aggregate models with different energy consumption characteristics, for purposes of testing, that would produce an accurate efficiency rating for each model included in the grouping. Today's final rule, however, will allow manufacturers to rate the efficiency of many of their transformers based on calculations instead of testing, by using alternative efficiency determination methods. This should substantially alleviate any potential testing burden created by a manufacturer's producing large numbers of basic models. In summary, DOE will slightly modify the proposed definition of ``basic model'' to explicitly provide that (1) voltage and BIL ratings are examples of differentiating electrical features that would cause transformer models to be different basic models, and (2) each basic model would comprise a group of models of distribution transformers. Otherwise, the proposed definition is sound because its specific elements and general criteria combine to allow the grouping of models with similar energy consumption characteristics without allowing models with different characteristics to be included in the same group. E. Manufacturer's Determination of Efficiency 1. General Discussion During this rulemaking, NEMA advocated DOE adoption of the sampling plan for compliance testing in NEMA TP 2-1998, which would allow manufacturers to demonstrate the compliance of aggregations of basic models, and the Department presented and solicited comment on several alternative approaches for demonstrating such aggregate compliance. For the reasons discussed in the SNOPR, the Department chose not to propose adoption of either the NEMA TP 2-1998 sampling plan or an alternative approach allowing aggregation. 69 FR 45513-15. Instead, the Department has adopted both a sampling plan for compliance testing, and provisions allowing use of alternative methods (other than actual testing), for manufacturers to use to determine the efficiency of individual basic models of distribution transformers. As proposed in the SNOPR, today's rule requires each manufacturer to determine the efficiency of each of its basic models on a one-time basis by testing, at least five with compliance testing, and by rating each of the remaining basic models either by testing it, or, under the conditions set forth in the rule, by calculating the basic model's efficiency using an alternative efficiency determination method (AEDM). Where the manufacturer uses an AEDM for a basic model, it would not test units of the basic model to determine its efficiency for purposes of establishing compliance with DOE requirements. 2. Sampling Plan The Department designed the sampling plan in today's final rule to provide a high probability that manufacturers would find each basic model to be in compliance with the efficiency level at which it is manufactured, but without creating a significant probability that models would be found to meet levels higher than those at which they are manufactured. The latter--``false positives''--would in effect create a regulatory loophole, by allowing transformer models manufactured at efficiency levels below applicable standards to be rated as compliant with those standards. The Department's goal for distribution transformers is to have about a 97.5 percent probability that tests on sample units of a basic model would verify or support an efficiency rating for the model that is equal to or less than the average efficiency of all units of that model manufactured. Stated alternatively, a basic model that is manufactured at or above its rated efficiency would have a probability of not less than 97.5 percent of passing the compliance demonstration test--i.e., being found in compliance with its rated value--based on test results using any sample size. To accomplish this goal, DOE incorporated into its proposed sampling plan a one-sided statistical z-test, with a 97.5 percent confidence limit for average efficiency or power loss, which manufacturers would apply to the test results derived from testing sample units of a basic model. The 97.5 percent confidence limit in the one-sided z-test corresponds to 2[sigma]/[radic]n, where [sigma] represents the standard deviation of units of distribution transformers, and n is the number of units, including one, in the sample. Thus, for example, if a manufacturer tested a sample of only one unit of a basic model, and its measured power loss did not exceed the rated power loss of the basic model by more than the amount representing two standard deviations, the test would confirm the validity of the rated efficiency. By way of further example, if the manufacturer tested a sample of more than one unit, the numerical value for losses corresponding to the 97.5 [[Page 24989]] percent confidence limit would decrease, and the precision of the determination of the average losses for the basic model would increase. In developing the SNOPR, DOE had information both to support a standard deviation (SD) for distribution transformers of 2.7 percent and to support one of 4 percent. Since the information in support of the 2.7 percent level was slightly stronger, DOE based the confidence limit (or ``tolerance'') \8\ in the SNOPR sampling plan on the SD of 2.7 percent. 69 FR 45515. Two SDs of 2.7 percent correspond to a tolerance for the average efficiency of the sample of units tested of 5/[radic]n percent. (Most commenters who commented on the sampling plan tolerance level addressed it as a straight numerical amount, although in actuality the proposed tolerance is a tolerance that depends on the size of the sample of units tested, and is 5/[radic]n percent. The commenters may have used straight numerical amounts because application of the expression 5/[radic]n percent to a sample size of one would always result in a flat five-percent tolerance.) --------------------------------------------------------------------------- \8\ The precise statistics term ``confidence limit'' is frequently replaced in engineering applications by a more general term ``tolerance.'' In the preceding discussion, DOE used the precise term to explain the basis of the tolerance in the SNOPR's proposed sampling plan for compliance testing. The Department will use the term ``tolerance'' in the discussion that follows, particularly because all of those who commented on this issue used this term. --------------------------------------------------------------------------- The Department received several comments stating that its proposed tolerance was too stringent, and should be relaxed. NEMA notes that the Department's equation relating the average efficiency of the sample and the represented efficiency assumes a tighter performance probability distribution function than is achievable in practice, particularly for small manufacturers. (NEMA, No. 47 at p. 3; NEMA, No. 51 at p. 3) Four commenters requested that the tolerance for individual units be relaxed from the SNOPR proposal of five percent to eight percent. (ERMCO, No. 43 at p. 2; FPT, No. 44 at p. 6; Howard, No. 45 at p. 2; EMS, No. 57 at p. 3) Federal Pacific commented that use of a five- percent tolerance is too stringent given the variability of transformer losses, particularly the variability of no-load losses. (FPT, No. 44 at p. 6) EMS and ERMCO recommend that the tolerance should be eight percent to be consistent with IEEE/ANSI C57.12.00 and NEMA TP 2. (EMS, No. 57 at p. 3; ERMCO, No. 43 at p. 2) Howard Industries also recommended that the minimum acceptable efficiency level calculation be based on an eight-percent tolerance on total loss. (Howard, No. 45 at p. 2) Four commenters advocated a 12-percent tolerance, which would equate to three SDs of 4 percent. (Cooper, No. 46 at pp. 1-2; HVOLT, No. 53 at pp. 1-2; PQI, No. 56 at pp. 1-2; NEMA, No. 59 at p. 1, NEMA, No. 60, Attachment 1 at p. 34) This tolerance level would increase the compliance demonstration probability to 99.9 percent, but would also allow for a significant probability of false positives. For example, a basic model designed with losses 2 percent above its rated value would have a 99.4-percent probability of being found to have an efficiency at or above its rated level if the sample size is one, and would have a 97-percent probability of being found to have such an efficiency if the sample size is five. In addition, a 12-percent tolerance would be inconsistent with the much smaller tolerance, for rejection of single units, in existing IEEE standards. For these reasons, the Department is not incorporating the 12-percent tolerance level into its sampling plan. Three of the commenters advocating the 12-percent tolerance for compliance testing based their position in part on the assertion that DOE's rule for electric motors allows a 20-percent ``test tolerance band.'' (Cooper, No. 46 at p. 2; HVOLT, No. 53 at p. 2; PQI, No. 56 at p. 2) The tolerance to which they refer in the electric motors rule is not applicable to distribution transformers for two reasons. First, the 20-percent tolerance in the motors rule applies during testing that occurs in enforcement proceedings. The rule uses this tolerance to determine the adequacy of the size of the test sample used in the proceeding, following testing of the initial sample, and determination of the sample's mean, standard deviation, and standard error. This 20- percent tolerance has no relevance to compliance testing. Second, application of a particular tolerance with respect to efficiency and losses for electric motors does not indicate the appropriate tolerance for distribution transformers. Induction motors have a similarity to transformers in that their stator and rotor windings are akin somewhat to the primary and secondary windings of a transformer. However, at that point the similarity ends. A transformer has no moving parts in normal operation whereas a motor's main feature is the spinning of the rotor, a mechanical process which in itself absorbs considerable energy. Thus, motors, in addition to having electrical power losses, also have mechanical losses. Consequently the comparison of motors and transformers when discussing tolerances used in determining efficiency is inappropriate. Based on the information provided in comments, DOE now believes that 4 percent is the better SD to use, and that the available information supporting the 4 percent figure outweighs that supporting the 2.7-percent SD. Two SDs at 4 percent equates to an eight-percent single unit tolerance, and results in a tolerance for the average efficiency of the sample of units tested of 8/[radic]n percent. Increasing the tolerance from 5/[radic]n percent to 8/[radic]n percent increases the probability of demonstrating compliance of a product manufactured at the applicable standard level from about 89 percent to about 98 percent, without introducing a significant probability that a product manufactured below the standard level would be found in compliance. This assumes that the variability of units of the basic model being tested have a standard deviation of 4 percent. The probability of a significant false positive--finding a model in compliance with its rated efficiency where on average the units of that model as manufactured actually experience a power loss 2-percent larger than the rated loss--is approximately 93 percent for a sample of one unit and 81 percent for a sample of five units. Both probabilities, especially the second one, are sufficiently low that a manufacturer would not risk producing a product with power losses 2 percent or more above the losses at which it seeks to rate the product. Thus, today's final rule increases the tolerance from 5/[radic]n percent to 8/ [radic]n percent. Several manufacturers submitted comments asking that DOE confirm that they have the option of testing all transformers of a basic model or some basic models. (Public Meeting Transcript, No. 42.11 at p. 22; NEMA, No. 39 at p. 2) One stakeholder requested clarification that if it chooses to test 100 percent of its production, it would not have to use the sampling plan or an AEDM (alternative efficiency determination method). (Public Meeting Transcript, No. 42.11 at p. 65) NEMA also requested clarification on the number of samples that would have to be tested if the sample size is small. (Public Meeting Transcript, No. 42.11 at p. 67) As indicated above, once efficiency standards for distribution transformers have gone into effect, today's rule will require each manufacturer to rate the efficiency of each of its basic models on a one-time basis. The rating would enable the manufacturer to establish that the basic model complies with the applicable standard, and provide the basis for any energy representations [[Page 24990]] (e.g., labeling and certification) required by DOE. 69 FR 45514. The Department intended in its SNOPR proposal, and wishes to confirm with respect to today's rule, that where a manufacturer arrives at this rating through testing, rather than use of an AEDM, the sampling plan would permit the manufacturer to test 100 percent of the units available for testing. The language of section 431.194(b)(2) of the final rule has been modified to make this clear. Thus, where manufacturers have on hand more than five units of a basic model at the time they do compliance testing to rate the basic model, or produce more than five over a six-month period, they would have the discretion to rate the basic model based on testing either all of the units or a sample of at least five units. In addition, the final rule clearly requires compliance testing of 100 percent of the units for basic models for which a manufacturer produces five or fewer units during a six-month period. None of the provisions in today's rule would prevent a manufacturer from doing continuous testing of 100 percent of the units it produces in order to meet contractual obligations to report to its customers the losses, efficiency or other energy consumption characteristics of each individual unit it sells to them. Nor does the Department anticipate that provisions it may adopt, for assuring compliance with energy conservation standards and for manufacturer representations (e.g., labeling) as to efficiency, would prevent manufacturers from testing all of their units in order to meet such obligations. 3. Alternative Efficiency Determination Method (AEDM) Under the proposed rule, a manufacturer would have to validate each AEDM it uses based on test data for at least five basic models, derived by testing at least five units of each of these basic models. 69 FR 45522. Taken together, these provisions would require testing of at least 25 units to validate an AEDM. Howard Industries commented that five basic models is too small a sample to adequately represent all the different kVA/voltages/BIL requirements when validating an AEDM and recommended that DOE require 75 models to be tested to validate an AEDM. (Howard, No. 45 at p. 3, and No. 55 at p. 3) Howard also asserted that five basic models was too low a number to verify that the AEDM would accurately predict the efficiency of all liquid-immersed transformers. It stated that transformers vary considerably, with a large number of design options. (Howard, No. 58 at p. 1) In addition to containing the validation requirement, however, the final rule (in section 431.197(a)(2)(i)) also precludes a manufacturer from applying an AEDM to a basic model unless ``the AEDM has been derived from a mathematical model that represents the electrical characteristics of that basic model.'' Thus, apart from any testing to validate the accuracy of an AEDM, this language will require each AEDM to represent any unique or custom-designed electrical characteristics of any basic model to which it applies. DOE believes that this provision satisfactorily addresses Howard's concern that DOE require AEDMs to reflect the particular characteristics of the transformers to which they apply. The Department believes that to require each AEDM to be validated based on testing of 75 basic models, or some other number larger than five, would create undue burden. The foregoing is particularly true because DOE understands that manufacturers use design models and software to design their distribution transformers, and DOE believes that most AEDMs would be derived from, or consist of, such models and software. Since these design tools would have validity independent of the AEDM substantiation required by DOE regulations, extensive testing to substantiate the validity of AEDMs appears to be unnecessary. Section 432.12(a)(2)(iii) of the proposed rule restricted the use of each AEDM to one of the following groups of distribution transformers: low-voltage dry-type transformers, medium-voltage dry- type transformers, and liquid-immersed transformers. 69 FR 45522. Upon further review, the Department believes that this provision is too restrictive, and that manufacturers should be permitted to use a single AEDM for distribution transformers in two or all three of these groups, so long as the manufacturer validates the AEDM separately for each group. The Department is aware of no reason why it should limit use of each AEDM to transformers in one of these groups, if the AEDM can validly predict the efficiency for transformers in more than one group. Accordingly, today's final rule allows a single AEDM to apply to two or all three of these groupings. See 10 CFR section 431.197(a)(2) of the rule. The rule also requires that the manufacturer validate each AEDM separately for each group--i.e., low-voltage dry-type, medium-voltage dry-type, and liquid-immersed--for which it uses the AEDM, based on test data for five basic models from such group. 10 CFR section 431.197(a)(2)(iii) of the rule. Thus to substantiate a single global AEDM that would apply to the entire range of distribution transformers (all three groups), a manufacturer would have to test not fewer than 15 basic models (a total of at least 75 units), and it would have to test at least 10 basic models (a total of at least 50 units) to substantiate an AEDM that would apply to two groups. DOE believes this amount of testing to validate the AEDM is sufficient. The SNOPR also included a requirement that manufacturers ``periodically'' verify each AEDM that they use. 69 FR 45523. Howard Industries recommended that the Department change ``periodically'' to ``annually.'' (Howard, No. 45 at p. 3, and No. 55 at p. 3) The Department considered this proposal, but decided that annual verification of an AEDM, which could include testing, could be unduly burdensome on manufacturers. The Department has also decided, however, largely because of the particular circumstances of the distribution transformer industry, to eliminate the periodic verification requirement from today's final rule. Many distribution transformer manufacturers already engage in continuous testing--sometimes by testing 100 percent of their units--to assure that the actual performance, including efficiency, of their products conforms to the manufacturer's design software and representations to customers. In addition, other provisions of today's final rule authorize DOE to obtain information from manufacturers concerning their use of AEDMs, and to require a manufacturer to do sample testing or take other steps. Thus, DOE now believes that mandatory, periodic, subsequent verification of AEDMs for distribution transformers is unwarranted. F. Enforcement Procedures The SNOPR included proposed enforcement procedures, including a sampling plan and other provisions for enforcement testing. 69 FR 45415-17, 45523-23, 45533-34. The Department based the proposed procedures on enforcement provisions in 10 CFR Part 430, which apply when DOE examines whether a basic model of a covered product complies with efficiency requirements set forth in those parts. The SNOPR's enforcement sampling plan was based on the plan in Part 430, but was developed specifically for distribution transformers. It allows testing of small sample sizes and applies only to energy efficiency testing, whereas the Part 430 plan contemplates [[Page 24991]] larger sample sizes and covers energy use testing. NEMA requested clarification on when the process of enforcement commences. (Public Meeting Transcript, No. 42.11 at p. 73) The Department initiates the enforcement process when it receives information, either from a third party or other source, indicating that a manufacturer's units may not be in compliance with the national standard. Initially, DOE seeks to meet with the manufacturer and review its underlying test data as to the models in question. DOE would commence enforcement testing procedures if these steps do not resolve identified compliance issues. The Department also received comments relating to enforcement as to stock units and imported units. Cooper sought clarification on application of efficiency standards to units in stock when standards take effect, and to foreign manufacturers. (Cooper, No. 46 at p. 2) Traditionally, new DOE standards for a product have applied to units manufactured after a certain date, or, in the case of foreign- manufactured units, imported after that date. See, e.g., 42 U.S.C. 6291, 6295, 6311 and 6313. The Department anticipates that this will also be the case for distribution transformers. Therefore, the efficiency levels would not apply to units in a domestic manufacturer's stock prior to the date standards become applicable, or to units imported prior to that date. In all other respects, DOE anticipates that the same requirements and enforcement provisions that apply to domestic units will also apply to imported units. In addition, however, imported units are subject to the provisions of 42 U.S.C. 6301 of EPCA, concerning importation of products subject to EPCA requirements. HVOLT commented that the Department should require that the efficiency of any foreign-built transformer be verified by a third party before it can be sold in the U.S. (HVOLT, No. 53 at p. 3) The Department believes that this issue is outside the scope of this rulemaking. Today's final rule does not address the DOE administrative framework for manufacturers to follow to demonstrate compliance with distribution transformer energy conservation standards. The Department will likely address such requirements in conjunction with the standards rulemaking. The SNOPR enforcement sampling plan contained several calculation equations. 69 FR 45533. Federal Pacific requested further explanation and examples of the enforcement calculations. (FPT, No. 44 at p. 6) As explained in the SNOPR, the statistical methods used in those calculations were based on well-established statistical methods for obtaining a confidence interval on a mean. 69 FR 45516. Hence, the Department believes these calculations can be understood by any statistician. In addition, a complete explanation is set forth in NIST Technical Note 1456, Operating Characteristics of the Proposed Sampling Plans for Testing Distribution Transformers, May 2004, which has been placed in the docket for this rulemaking and is publicly available at http://www.eere.energy.gov/buildings/appliance_standards/commercial/dist_transformers.html. On the other hand, it would be very burdensome for DOE to develop and include in this notice a detailed explanation, in layman's terms, of the statistics and operation of these equations. Furthermore, these equations will be used by DOE, and would not be applied by manufacturers. For these reasons, the Department has concluded that the type of explanation Federal Pacific requests is unwarranted, and would add little useful information to the record of this rulemaking. III. Procedural Requirements A. Review Under Executive Order 12866 The Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) has determined that today's regulatory action is not a ``significant regulatory action'' under Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under the Executive Order. B. Review Under the Regulatory Flexibility Act of 1980 The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. The Department has made its procedures and policies available on the Office of General Counsel's Web site: http://www.gc.doe.gov. The Department reviewed today's final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003, and certified in the SNOPR that the proposed rule would not impose a significant economic impact on a substantial number of small entities. 69 FR 45517. As indicated in section I-A above, when it issued the SNOPR DOE was concurrently pursuing a rulemaking to develop energy conservation standards for low- voltage dry type, medium-voltage dry type and liquid immersed distribution transformers. The Department explained in the SNOPR that, unless and until DOE adoption of such standards, no entities, small or large, would be required to comply with today's final rule. 69 FR 45517. Once the Department adopted standards, however, the rule would become binding on, and could have an economic impact on, small entities which manufacture the distribution transformers subject to the standards. But the nature and extent of such impact, if any, could not be assessed until the Department has promulgated the standards. The Department stated in the SNOPR that, in light of these circumstances, at an appropriate point in conjunction with the standards rulemaking, it will conduct further review under the Regulatory Flexibility Act. The Department received no comments on this issue in response to the SNOPR. For medium-voltage dry-type and liquid immersed distribution transformers, DOE is continuing to pursue its standards-development rulemaking and the circumstances described in the SNOPR still exist. Therefore, after considering the potential impact of this final rule on small entities that manufacture these transformers, DOE affirms the certification that this rule will not have a significant economic impact on a substantial number of these small entities. Low-voltage dry-type distribution transformers, however, are no longer included in DOE's rulemaking on energy conservation standards for distribution transformers. Instead, EPCA, as amended in EPACT 20005, now specifies minimum standards for all such transformers manufactured after January 1, 2007, 42 U.S.C. 6295(y), and the Department has incorporated those standards into its regulations. 10 CFR section 431.196. Because today's rule will apply to all distribution transformers that become subject to standards, as of January 1, 2007, the rule [[Page 24992]] would become binding on all manufacturers, small and large, of low- voltage dry-type distribution transformers. Consequently, under the Regulatory Flexibility Act, the Department must assess the economic impact of this rule on small manufacturers of these transformers. Small businesses, as defined by the Small Business Administration (SBA) for the distribution transformer manufacturing industry, are manufacturing enterprises with 750 employees or fewer. The Department estimates that, of a total of approximately 55 manufacturers of low- voltage dry-type distribution transformers, about 45 are small businesses under the SBA definition. In today's rule, the enforcement provisions and the methods manufacturers must use to rate its products could potentially impose burdens on these small manufacturers. But DOE has examined these aspects of the rule and determined that they will not have a significant economic impact on a substantial number of small manufacturers of low-voltage dry-type distribution transformers. As to the enforcement provisions, they require DOE to first attempt to resolve a transformer's possible non-compliance with EPCA requirements by reviewing available information and meeting with the manufacturer. Then, if necessary, DOE must test sample units of the allegedly non-complying basic model(s) to determine whether they comply. See Section 431.198 of the attached rule. Only provisions that come into play once DOE invokes testing--specifically, manufacturers must provide and ship sample units to DOE and must retain all units in the batch sample until a final determination of compliance or non- compliance, and manufacturers may conduct additional testing at their own expense if the DOE testing indicates non-compliance--could impose a significant burden on manufacturers. None of the enforcement provisions imposes on-going duties on manufacturers. They apply only when an issue of compliance is raised, which at this point is speculative. Indeed, even when they are invoked as to a particular manufacturer, they will only apply to the specific basic model(s) at issue. Moreover, these types of enforcement provisions have been in place for DOE's program for appliance energy conservation standards for more than 15 years, and the Department has commenced the process at most two or three times a year. In every instance it has resolved the matter without proceeding to enforcement testing, the only part of the process that could impose a significant burden on manufacturers. For all of these reasons the Department concludes that the enforcement provisions in today's rule will not have a significant impact on a substantial number of entities, whether small or large. As to the methods for manufacturers to rate the efficiencies of low-voltage dry-type distribution transformers, DOE notes initially that requirements for testing and rating these transformers are already implicit in EPCA. Specifically, to comply with EPCA's efficiency standards for low-voltage dry-type distribution transformers, 42 U.S.C. 6295(y), manufacturers will have to determine the efficiencies of any such transformers they produce. This necessarily entails the use of testing and rating methods, and if DOE does not prescribe such methods, manufacturers would still be subject to the burden of using such tools. In addition, as noted above, EPCA requires DOE to prescribe testing requirements for any transformers subject to standards, and states that these requirements ``shall be based on'' NEMA TP 2-1998. 42 U.S.C. 6293(b)(10) and 6317(a). Although these provisions allow the Department substantial discretion in prescribing a test method for distribution transformers, they indicate that EPCA contemplates that the DOE method likely would impose burdens equivalent or similar to those imposed by NEMA TP 2-1998. Thus, today's rule itself has an impact on small manufacturers only to the extent it imposes an incremental burden beyond what they would be required to do to comply with EPCA's standards or NEMA TP 2-1998. This is significant under the Regulatory Flexibility Act because the Act applies only where the agency's rule has a significant impact on small entities. It does not apply to a rule if the agency certifies that ``the rule will not * * * have a significant impact on a substantial number of small entities.'' 5 U.S.C. 605(a) (Emphasis added). Thus, the Act does not apply, for example, where the agency merely incorporates statutory requirements into its rules, or adopts the equivalent of statutory requirements without adding any significant impact on small entities. In such instances, it is the statutory requirements, and not the agency's rule, that could have an impact on small entities. The Department therefore examines in the following paragraphs whether today's rule imposes any burdens on small entities beyond those imposed by EPCA. In prescribing efficiency rating methods, today's rule (1) addresses the number of its basic models a manufacturer must rate through actual testing and how may units of each it must test, (2) prescribes a detailed method for testing each unit, and (3) provides for use of alternative efficiency determination methods for transformers that manufacturers do not rate through testing. See Section 431.193 and 431.197 of the attached rule. As to whether today's method for testing each unit is more burdensome than NEMA TP 2-1998, the two are nearly identical except that the Department's method adds technical detail, clarifying language, and editorial improvements. Thus, the DOE method is no more burdensome, and may alleviate burden because it reduces the need for manufacturers to do background work to provide missing details and clarify ambiguous provisions. Nor does today's test method impose significantly, if any, more burden than other methods a small manufacturer might reasonably use to comply with the EPACT standards for low-voltage dry-type transformers. A manufacturer might choose to use NEMA TP 2-1998, which as just indicated is no more burdensome than today's method, or NEMA TP 2-2005, which is almost word-for-word the same as the SNOPR's test method and which varies little from today's rule. A manufacturer might also craft a test method from the standards of accepted engineering practice as set forth in IEEE standards. On the one hand, except for the requirements as to equipment calibration in today's rule, the test method in the rule is the equivalent to the method in the four relevant IEEE standards. On the other hand, DOE believes it is possible that small manufacturers might each be able to modify the details of the IEEE test method so as to best fit its products. As a result its costs of testing needed to comply with the EPACT efficiency standards, i.e., implicit in the EPACT requirements, could be lower than the cost of testing under the test method in today's rule. The Department believes that such savings would not be significant, and to some extent would be offset by the resources a small manufacturer would have to expend to research and develop such a customized test method. Today's method does include requirements to calibrate equipment and maintain records of such calibrations, which are not explicitly included in the IEEE standards. But to achieve the accuracy levels required under these standards, a manufacturer would have to engage in some calibration effort. In any event, DOE estimates that today's rule would [[Page 24993]] require only about one week of staff time to satisfy the calibration requirements in the first year the rule is operative, and about two days a year thereafter. For the foregoing reasons, the Department concludes that, although today's test method might impose modest burdens on small manufacturers of low-voltage dry-type distribution transformers, these burdens are not significant. However, the final rule's provisions as to the amount of testing required to rate distribution transformer efficiencies are clearly far less burdensome to small manufacturers than methodologies currently in use. The rule requires each manufacturer to test at least five basic models. For each such model, the manufacturer must test the lesser of all units manufactured over a 180 day period or five units, and must rate the basic model's efficiency by applying a formula to the test results. The rule also allows use of AEDMs to rate the remaining basic models. The IEEE standards contain no provision for sampling, or for use of AEDMs, in rating the efficiency of distribution transformers. Moreover, DOE understands that, under current practice, where a manufacturer must rate a low-voltage dry-type transformer's losses--the equivalent of efficiency determination--typically it will test all units and rate them based on their average efficiency. Although, as explained below in footnote 6, EPCA does not direct DOE to use the sampling regimen in NEMA TP 2-1998, that is a methodology a manufacturer might use to determine whether its low-voltage dry-type transformers comply with EPCA's standards. NEMA TP 2-1998's sampling plan provides that, over a 180-day period, either all units manufactured be tested, or that five or more units per month be tested, thus requiring approximately six times as much testing as today's rule. It also contains no provision for rating transformer efficiencies through use of AEDMs. As explained in the SNOPR, 69 FR 45514-15, NEMA TP 2-1998 clearly requires considerably more testing that today's final rule (which requires the same amount of testing as DOE's proposal in the SNOPR). Insofar as the final rule's reduction in testing burden results from the use of AEDMs, however, this benefit is not without cost. The Department estimates that a manufacturer would have to incur approximately three to six weeks of engineering staff time to develop a valid AEDM, and approximately two weeks of staff time to administer and maintain the AEDM(s) thereafter. The Department estimates, however, that use of AEDMs would allow a manufacturer to do less than 20 percent of the testing that would otherwise be required. For all of these reasons, the Department certifies that today's final rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE has transmitted the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review pursuant to 5 U.S.C. 605(b). C. Review Under the Paperwork Reduction Act As indicated in the SNOPR, today's final rule contains certain record-keeping requirements. 69 FR 45517. The situation with respect to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is similar to that described in Section III.B. with respect to the Regulatory Flexibility Act. For the reasons stated there, unless and until the Department requires manufacturers to comply with energy conservation standards for medium-voltage and liquid immersed distribution transformers, no manufacturer of those products would be required to comply with these record-keeping provisions. Therefore, today's rule would not impose on those manufacturers any new reporting requirements requiring clearance by OMB under the Paperwork Reduction Act. The Department recognizes, however, as also set forth in the SNOPR, that if it adopts standards for those distribution transformers, once the standards become operative manufacturers will become subject to the record-keeping requirements in today's rule, and possibly additional reporting and/or record-keeping requirements. 69 FR 45517. We received no comments on this issue. For medium-voltage and liquid immersed distribution transformers, the Department intends, as stated in the SNOPR, to comply with the Paperwork Reduction Act with respect to the record-keeping requirements in today's rule at the appropriate point in conjunction with the standards development rulemaking. Since the publication of the SNOPR, however, the Department has adopted standards prescribed by EPCA for low-voltage dry-type distribution transformers. When these standards become operative on January 1, 2007, manufacturers of those products will be required to comply with the record-keeping provisions in today's rule. Therefore, as to these manufacturers today's final rule contains certain record- keeping requirements that must be approved by the OMB pursuant to the Paperwork Reduction Act before the manufacturers may be required to comply with them. Section 431.197(a)(4)(i) would require manufacturers of distribution transformers to have records as to alternative efficiency determination methods available for DOE inspection; section 6.2 of Appendix A would require maintenance of calibration records. As a result, concurrent with or shortly after publication of today's rule, the Department will issue a notice seeking public comment under the Paperwork Reduction Act, with respect to these manufacturers, on the record-keeping requirements in today's rule. After considering any public comments received in response to that notice, DOE will submit the proposed collection of information to OMB for approval pursuant to 44 U.S.C. 3507. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. As stated in the ``EFFECTIVE DATE'' line of this notice of final rulemaking, the information collection requirements in Sec. 431.197(a)(4)(i) and section 6.2(b) and (c) of Appendix A will not become effective until OMB approves them. The Department will publish a document in the Federal Register advising low-voltage dry-type manufacturers of their effective date. That document also will display the OMB control number. D. Review Under the National Environmental Policy Act of 1969 DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and the Department's implementing regulations at 10 CFR part 1021. Specifically, this rule establishing test procedures will not affect the quality or distribution of energy and, will not result in any environmental impacts, and, therefore, is covered by the Categorical Exclusion in paragraph A6 to subpart D, 10 CFR part 1021. Accordingly, neither an environmental assessment nor an environmental impact statement is required. E. Review Under Executive Order 13132 Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to [[Page 24994]] examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations 65 FR 13735. DOE has examined today's final rule and has determined that it does not preempt State law and does not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132. F. Review Under Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988. G. Review Under the Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed ``significant intergovernmental mandate,'' and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820 (also available at http://www.gc.doe.gov). Today's rule does not contain any Federal mandate likely to result in an aggregate expenditure of $100 million or more in any year, so these requirements under the Unfunded Mandates Reform Act do not apply. H. Review Under the Treasury and General Government Appropriations Act of 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. I. Review Under Executive Order 12630 The Department has determined, under Executive Order 12630, ``Governmental Actions and Interference with Constitutionally Protected Property Rights,'' 53 FR 8859 (March 18, 1988), that this regulation would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution. J. Review Under the Treasury and General Government Appropriations Act, 2001 Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). The Department has reviewed today's final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. K. Review Under Executive Order 13211 Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A ``significant energy action'' is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This final rule is not a significant regulatory action under Executive Order 12866 or any successor order. In addition, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated by the Administrator of OIRA as a significant energy action. Thus, DOE has not prepared a Statement of Energy Effects. [[Page 24995]] L. Review Under Section 32 of the Federal Energy Administration Act of 1974 Under Section 301 of the Department of Energy Organization Act (Pub. L. 95-91), the Department must comply with Section 32 of the Federal Energy Administration Act of 1974 (FEAA), as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788) The Department indicated in the SNOPR that Section 32 applies to the portion of today's rule that incorporates testing methods contained in five commercial standards, requiring consultation with the Attorney General and the Chairman of the Federal Trade Commission concerning the impact of these standards on competition. 69 FR 45506, 45519 (July 29, 2004). Since publication of the SNOPR, DOE has reviewed this requirement for consultation as it applies to this final rule. While DOE now believes that such consultation is not necessarily required for this rule, since DOE stated in the SNOPR that it would submit it for consultation under Section 32, it has done so. Neither the Attorney General nor the Chairman of the Federal Trade Commission has recommended against incorporation of these standards. M. Congressional Notification As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a ``major rule'' as defined by 5 U.S.C. 804(2). IV. Approval of the Office of the Secretary The Secretary of Energy has approved publication of this final rule. List of Subjects in 10 CFR Part 431 Administrative practice and procedure, Distribution transformers, Energy conservation. Issued in Washington, DC, on March 28, 2006. Douglas L. Faulkner, Acting Assistant Secretary, Energy Efficiency and Renewable Energy. 0 For the reasons set forth in the preamble, Part 431 of Chapter II of Title 10, Code of Federal Regulations, is amended as set forth below. PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENT 0 1. The authority citation for Part 431 continues to read as follows: Authority: 42 U.S.C. 6291-6317. 0 2. Section 431.191 is revised to read as follows: Sec. 431.191 Purpose and scope. This subpart contains energy conservation requirements for distribution transformers, pursuant to Parts B and C of Title III of the Energy Policy and Conservation Act, as amended, 42 U.S.C. 6291- 6317. 0 3. Section 431.192 is amended by: 0 a. Revising the Section heading. 0 b. Adding introductory language. 0 c. Adding in alphabetical order definitions of ``autotransformer,'' ``basic model,'' ``drive (isolation) transformer,'' ``efficiency,'' ``excitation current or no-load current,'' ``grounding transformer,'' ``liquid-immersed distribution transformer,'' ``load loss,'' ``machine- tool (control) transformer,'' ``medium-voltage dry-type distribution transformer,'' ``no-load loss,'' ``nonventilated transformer,'' ``phase angle,'' ``phase angle correction,'' ``phase angle error,'' ``rectifier transformer,'' ``reference temperature,'' ``regulating transformer,'' ``sealed transformer,'' ``special-impedance transformer,'' ``temperature correction,'' ``test current,'' ``test frequency,'' ``test voltage,'' ``testing transformer,'' ``total loss,'' ``transformer with tap range of 20 percent or more,'' ``uninterruptible power supply transformer,'' ``waveform correction,'' and ``welding transformer.'' 0 d. Revising the definition of ``distribution transformer.'' The revision and additions read as follows: Sec. 431.192 Definitions. The following definitions apply for purposes of this subpart: Autotransformer means a transformer that: (1) Has one physical winding that consists of a series winding part and a common winding part; (2) Has no isolation between its primary and secondary circuits; and (3) During step-down operation, has a primary voltage that is equal to the total of the series and common winding voltages, and a secondary voltage that is equal to the common winding voltage. Basic model means a group of models of distribution transformers manufactured by a single manufacturer, that have the same insulation type (i.e., liquid-immersed or dry-type), have the same number of phases (i.e., single or three), have the same standard kVA rating, and do not have any differentiating electrical, physical or functional features that affect energy consumption. Differences in voltage and differences in basic impulse insulation level (BIL) rating are examples of differentiating electrical features that affect energy consumption. Distribution transformer means a transformer that-- (1) Has an input voltage of 34.5 kV or less; (2) Has an output voltage of 600 V or less; (3) Is rated for operation at a frequency of 60 Hz; and (4) Has a capacity of 10 kVA to 2500 kVA for liquid-immersed units and 15 kVA to 2500 kVA for dry-type units; but (5) The term ``distribution transformer'' does not include a transformer that is an-- (i) Autotransformer; (ii) Drive (isolation) transformer; (iii) Grounding transformer; (iv) Machine-tool (control) transformer; (v) Nonventilated transformer; (vi) Rectifier transformer; (vii) Regulating transformer; (viii) Sealed transformer; (ix) Special-impedance transformer; (x) Testing transformer; (xi) Transformer with tap range of 20 percent or more; (xii) Uninterruptible power supply transformer; or (xiii) Welding transformer. Drive (isolation) transformer means a transformer that: (1) Isolates an electric motor from the line; (2) Accommodates the added loads of drive-created harmonics; and (3) Is designed to withstand the additional mechanical stresses resulting from an alternating current adjustable frequency motor drive or a direct current motor drive. Efficiency means the ratio of the useful power output to the total power input. Excitation current or no-load current means the current that flows in any winding used to excite the transformer when all other windings are open-circuited. Grounding transformer means a three-phase transformer intended primarily to provide a neutral point for system-grounding purposes, either by means of: (1) A grounded wye primary winding and a delta secondary winding; or (2) A transformer with its primary winding in a zig-zag winding arrangement, and with no secondary winding. Liquid-immersed distribution transformer means a distribution transformer in which the core and coil assembly is immersed in an insulating liquid. Load loss means, for a distribution transformer, those losses incident to a specified load carried by the [[Page 24996]] transformer, including losses in the windings as well as stray losses in the conducting parts of the transformer. * * * * * Machine-tool (control) transformer means a transformer that is equipped with a fuse or other over-current protection device, and is generally used for the operation of a solenoid, contactor, relay, portable tool, or localized lighting. Medium-voltage dry-type distribution transformer means a distribution transformer in which the core and coil assembly is immersed in a gaseous or dry-compound insulating medium, and which has a rated primary voltage between 601 V and 34.5 kV. No-load loss means those losses that are incident to the excitation of the transformer. Nonventilated transformer means a transformer constructed so as to prevent external air circulation through the coils of the transformer while operating at zero gauge pressure. Phase angle means the angle between two phasors, where the two phasors represent progressions of periodic waves of either: (1) Two voltages; (2) Two currents; or (3) A voltage and a current of an alternating current circuit. Phase angle correction means the adjustment (correction) of measurement data to negate the effects of phase angle error. Phase angle error means incorrect displacement of the phase angle, introduced by the components of the test equipment. Rectifier transformer means a transformer that operates at the fundamental frequency of an alternating-current system and that is designed to have one or more output windings connected to a rectifier. Reference temperature means 20 [deg]C for no-load loss, 55 [deg]C for load loss of liquid-immersed distribution transformers at 50 percent load, and 75 [deg]C for load loss of both low-voltage and medium-voltage dry-type distribution transformers, at 35 percent load and 50 percent load, respectively. It is the temperature at which the transformer losses must be determined, and to which such losses must be corrected if testing is done at a different point. (These temperatures are specified in the test method in Appendix A to this part.) Regulating transformer means a transformer that varies the voltage, the phase angle, or both voltage and phase angle, of an output circuit and compensates for fluctuation of load and input voltage, phase angle or both voltage and phase angle. Sealed transformer means a transformer designed to remain hermetically sealed under specified conditions of temperature and pressure. Special-impedance transformer means any transformer built to operate at an impedance outside of the normal impedance range for that transformer's kVA rating. The normal impedance range for each kVA rating for liquid-immersed and dry-type transformers is shown in Tables 1 and 2, respectively. Table 1.--Normal Impedance Ranges for Liquid-Immersed Transformers ---------------------------------------------------------------------------------------------------------------- Single-phase transformers Three-phase transformers ---------------------------------------------------------------------------------------------------------------- kVA Impedance (%) kVA Impedance (%) ---------------------------------------------------------------------------------------------------------------- 10.............................................................. 1.0-4.5 15 1.0-4.5 15.............................................................. 1.0-4.5 30 1.0-4.5 25.............................................................. 1.0-4.5 45 1.0-4.5 37.5............................................................ 1.0-4.5 75 1.0-5.0 50.............................................................. 1.5-4.5 112.5 1.2-6.0 75.............................................................. 1.5-4.5 150 1.2-6.0 100............................................................. 1.5-4.5 225 1.2-6.0 167............................................................. 1.5-4.5 300 1.2-6.0 250............................................................. 1.5-6.0 500 1.5-7.0 333............................................................. 1.5-6.0 750 5.0-7.5 500............................................................. 1.5-7.0 1000 5.0-7.5 667............................................................. 5.0-7.5 1500 5.0-7.5 833............................................................. 5.0-7.5 2000 5.0-7.5 2500 5.0-7.5 ---------------------------------------------------------------------------------------------------------------- Table 2.--Normal Impedance Ranges for Dry-Type Transformers ---------------------------------------------------------------------------------------------------------------- Single-phase transformers Three-phase transformers ---------------------------------------------------------------------------------------------------------------- kVA Impedance (%) kVA Impedance (%) ---------------------------------------------------------------------------------------------------------------- 15.............................................................. 1.5-6.0 15 1.5-6.0 25.............................................................. 1.5-6.0 30 1.5-6.0 37.5............................................................ 1.5-6.0 45 1.5-6.0 50.............................................................. 1.5-6.0 75 1.5-6.0 75.............................................................. 2.0-7.0 112.5 1.5-6.0 100............................................................. 2.0-7.0 150 1.5-6.0 167............................................................. 2.5-8.0 225 3.0-7.0 250............................................................. 3.5-8.0 300 3.0-7.0 333............................................................. 3.5-8.0 500 4.5-8.0 500............................................................. 3.5-8.0 750 5.0-8.0 667............................................................. 5.0-8.0 1000 5.0-8.0 833............................................................. 5.0-8.0 1500 5.0-8.0 2000 5.0-8.0 2500 5.0-8.0 ---------------------------------------------------------------------------------------------------------------- [[Page 24997]] Temperature correction means the mathematical correction(s) of measurement data, obtained when a transformer is tested at a temperature that is different from the reference temperature, to the value(s) that would have been obtained if the transformer had been tested at the reference temperature. Test current means the current of the electrical power supplied to the transformer under test. Test frequency means the frequency of the electrical power supplied to the transformer under test. Test voltage means the voltage of the electrical power supplied to the transformer under test. Testing transformer means a transformer used in a circuit to produce a specific voltage or current for the purpose of testing electrical equipment. Total loss means the sum of the no-load loss and the load loss for a transformer. * * * * * Transformer with tap range of 20 percent or more means a transformer with multiple voltage taps, the highest of which equals at least 20 percent more than the lowest, computed based on the sum of the deviations of the voltages of these taps from the transformer's nominal voltage. Uninterruptible power supply transformer means a transformer that supplies power to an uninterruptible power system, which in turn supplies power to loads that are sensitive to power failure, power sags, over voltage, switching transients, line noise, and other power quality factors. Waveform correction means the adjustment(s) (mathematical correction(s)) of measurement data obtained with a test voltage that is non-sinusoidal, to a value(s) that would have been obtained with a sinusoidal voltage. Welding transformer means a transformer designed for use in arc welding equipment or resistance welding equipment. 0 4. Section 431.193 is added to subpart K, under the heading ``Test Procedures,'' to read as follows: Test Procedures Sec. 431.193 Test procedures for measuring energy consumption of distribution transformers. The test procedures for measuring the energy efficiency of distribution transformers for purposes of EPCA are specified in Appendix A to this subpart. 0 5. Section 431.196 is amended in paragraph (a) by revising the table to read as follows: Sec. 431.196 Energy conservation standards and their effective dates. (a) * * * ---------------------------------------------------------------------------------------------------------------- Single phase Three phase ---------------------------------------------------------------------------------------------------------------- Efficiency (%) Efficiency (%) kVA \1\ kVA \1\ ---------------------------------------------------------------------------------------------------------------- 15.............................................................. 97.7 15 97.0 25.............................................................. 98.0 30 97.5 37.5............................................................ 98.2 45 97.7 50.............................................................. 98.3 75 98.0 75.............................................................. 98.5 112.5 98.2 100............................................................. 98.6 150 98.3 167............................................................. 98.7 225 98.5 250............................................................. 98.8 300 98.6 333............................................................. 98.9 500 98.7 750 98.8 1000 98.9 ---------------------------------------------------------------------------------------------------------------- \1\ Efficiencies are determined at the following reference conditions: (1) for no-load losses, at the temperature of 20 [deg]C, and (2) for load-losses, at the temperature of 75 [deg]C and 35 percent of nameplate load. (Source: Table 4-2 of National Electrical Manufacturers Association (NEMA) Standard TP-1-2002, ``Guide for Determining Energy Efficiency for Distribution Transformers.'') * * * * * 0 6. Sections 431.197 through 431.198 are added to subpart K, under the heading ``Compliance and Enforcement,'' to read as follows: Compliance and Enforcement Sec. 431.197 Manufacturer's determination of efficiency for distribution transformers. When a manufacturer or other party (both of which this section refers to as a ``manufacturer'') determines the efficiency of a distribution transformer in order to comply with an obligation imposed on it by or pursuant to Part C of Title III of EPCA, 42 U.S.C. 6311- 6317, this section applies. This section does not apply to enforcement testing conducted pursuant to Sec. 431.198 of this part. (a) Methods used to determine efficiency--(1) General requirements. A manufacturer must determine the efficiency of each basic model of distribution transformer either by testing, in accordance with Sec. 431.193 of this part and paragraphs (b)(2) and (b)(3) of this section, or by application of an alternative efficiency determination method (AEDM) that meets the requirements of paragraphs (a)(2) and (a)(3) of this section; provided, however, that a manufacturer may use an AEDM to determine the efficiency of one or more of its untested basic models only if it determines the efficiency of at least five of its other basic models (selected in accordance with paragraph (b)(1) of this section) through actual testing. For each basic model of distribution transformer that has a configuration of windings which allows for more than one nominal rated voltage, the manufacturer must determine the basic model's efficiency either at the voltage at which the highest losses occur or at each voltage at which the transformer is rated to operate. (2) Alternative efficiency determination method. A manufacturer may apply an AEDM to a basic model pursuant to paragraph (a)(1) of this section only if: (i) The AEDM has been derived from a mathematical model that represents the electrical characteristics of that basic model; (ii) The AEDM is based on engineering and statistical analysis, computer simulation or modeling, or other analytic evaluation of performance data; and (iii) The manufacturer has substantiated the AEDM, in accordance with paragraph (a)(3) of this section, by applying it to, and testing, at least five [[Page 24998]] other basic models of the same type, i.e., low-voltage dry-type distribution transformers, medium-voltage dry-type distribution transformers, or liquid-immersed distribution transformers. (3) Substantiation of an alternative efficiency determination method. Before using an AEDM, the manufacturer must substantiate the AEDM's accuracy and reliability as follows: (i) Apply the AEDM to at least five of the manufacturer's basic models that have been selected for testing in accordance with paragraph (b)(1) of this section, and calculate the power loss for each of these basic models; (ii) Test at least five units of each of these basic models in accordance with the applicable test procedure and paragraph (b)(2) of this section, and determine the power loss for each of these basic models; (iii) The predicted total power loss for each of these basic models, calculated by applying the AEDM pursuant to paragraph (a)(3)(i) of this section, must be within plus or minus five percent of the mean total power loss determined from the testing of that basic model pursuant to paragraph (a)(3)(ii) of this section; and (iv) Calculate for each of these basic models the percentage that its power loss calculated pursuant to paragraph (a)(3)(i) is of its power loss determined from testing pursuant to paragraph (a)(3)(ii), compute the average of these percentages, and that calculated average power loss, expressed as a percentage of the average power loss determined from testing, must be no less than 97 percent and no greater than 103 percent. (4) Subsequent verification of an AEDM. (i) Each manufacturer that has used an AEDM under this section shall have available for inspection by the Department of Energy records showing: The method or methods used; the mathematical model, the engineering or statistical analysis, computer simulation or modeling, and other analytic evaluation of performance data on which the AEDM is based; complete test data, product information, and related information that the manufacturer has generated or acquired pursuant to paragraph (a)(3) of this section; and the calculations used to determine the efficiency and total power losses of each basic model to which the AEDM was applied. (ii) If requested by the Department, the manufacturer shall conduct simulations to predict the performance of particular basic models of distribution transformers specified by the Department, analyses of previous simulations conducted by the manufacturer, sample testing of basic models selected by the Department, or a combination of the foregoing. (b) Additional testing requirements--(1) Selection of basic models for testing if an AEDM is to be applied. (i) A manufacturer must select basic models for testing in accordance with the following criteria: (A) Two of the basic models must be among the five basic models with the highest unit volumes of production by the manufacturer in the prior year, or during the prior 12-calendar-month period beginning in 2003,\1\ whichever is later; --------------------------------------------------------------------------- \1\ When identifying these five basic models, any basic model that does not comply with Federal energy conservation standards for distribution transformers that may be in effect shall be excluded from consideration. --------------------------------------------------------------------------- (B) No two basic models should have the same combination of power and voltage ratings; and (C) At least one basic model should be single-phase and at least one should be three-phase. (ii) In any instance where it is impossible for a manufacturer to select basic models for testing in accordance with all of these criteria, the criteria shall be given priority in the order in which they are listed. Within the limits imposed by the criteria, basic models shall be selected randomly. (2) Selection of units for testing within a basic model. For each basic model a manufacturer selects for testing, it shall select and test units as follows: (i) If the manufacturer would produce five or fewer units of a basic model over a reasonable period of time (approximately 180 days), then it must test each unit. However, a manufacturer may not use a basic model with a sample size of fewer than five units to substantiate an AEDM pursuant to paragraph (a)(3) of this section. (ii) If the manufacturer produces more than five units over such period of time, it must either test all such units or select a sample of at least five units at random and test them. Any such sample shall be comprised of production units of the basic model, or units that are representative of such production units. (3) Applying results of testing. In a test of compliance with a represented efficiency, the average efficiency of the sample, X, which is defined by [GRAPHIC] [TIFF OMITTED] TR27AP06.000 where Xi is the measured efficiency of unit i and n is the number of units tested, must satisfy the condition: [GRAPHIC] [TIFF OMITTED] TR27AP06.001 where RE is the represented efficiency. Sec. 431.198 Enforcement testing for distribution transformers. (a) Test notice. Upon receiving information in writing, concerning the energy performance of a particular distribution transformer sold by a particular manufacturer or private labeler, which indicates that the transformer may not be in compliance with the applicable energy efficiency standard, or upon undertaking to ascertain the accuracy of the efficiency rating on the nameplate or in marketing materials for a distribution transformer, disclosed pursuant to this part, the Department may conduct testing of that equipment under this subpart by means of a test notice addressed to the manufacturer in accordance with the following requirements: (1) The test notice procedure will only be followed after the Department has examined the underlying test data (or, where appropriate, data as to use of an AEDM) provided by the manufacturer and after the manufacturer has been offered the opportunity to meet with the Department to verify, as applicable, compliance with the applicable efficiency standard, or the accuracy of labeling information, or both. In addition, where compliance of a basic model was certified based on an AEDM, the Department shall have the discretion to pursue the provisions of Sec. 431.197(a)(4)(ii) prior to invoking the test notice procedure. The Department shall be permitted to observe any reverification procedures undertaken pursuant to this subpart, and to inspect the results of such reverification. (2) The Department will mail or deliver the test notice to the plant manager or other responsible official, as designated by the manufacturer. (3) The test notice will specify the basic model(s) to be selected for testing, the method of selecting the test sample, the date and time at which testing shall be initiated, the date by which testing is scheduled to be completed and the facility at which testing will be conducted. The test notice may also provide for situations in which a specified basic model is unavailable for testing, and may include alternative basic models. The specified basic model may be one either that the manufacturer has rated by actual testing or that it has rated by the use of an AEDM. (4) The Department may require in the test notice that the manufacturer shall [[Page 24999]] ship at its expense a reasonable number of units of each basic model specified in such test notice to a testing laboratory designated by the Department. The number of units of each basic model specified in a test notice shall not exceed twenty (20). (5) Except as required or provided in paragraphs (a)(6) or (a)(7) of this section, initially the Department will test five units. (6) Except as provided in paragraph (a)(7) of this section, if fewer than five units of a basic model are available for testing when the manufacturer receives the test notice, then (i) DOE will test the available unit(s); or (ii) If one or more other units of the basic model are expected to become available within six months, DOE may instead, at its discretion, test either: (A) The available unit(s) and one or more of the other units that subsequently become available (up to a maximum of twenty); or (B) Up to twenty of the other units that subsequently become available. (7) Notwithstanding paragraphs (a)(5) and (a)(6) of this section, if testing of the available or subsequently available units of a basic model would be impractical, as for example where a basic model is very large, has unusual testing requirements, or has limited production, the Department may in its discretion decide to base the determination of compliance on the testing of fewer than the available number of units, if the manufacturer so requests and demonstrates that the criteria of this paragraph are met. (8) When testing units under paragraphs (a)(5), (a)(6), or (a)(7) of this section, DOE shall perform the following number of tests: (i) If DOE tests four or more units, it will test each unit once; (ii) If DOE tests two or three units, it will test each unit twice; or (iii) If DOE tests one unit, it will test that unit four times. (9) Within five working days of the time the units are selected, the manufacturer shall ship the specified test units of the basic model to the testing laboratory. (b) Testing laboratory. Whenever the Department conducts enforcement testing at a designated laboratory in accordance with a test notice under this section, the resulting test data shall constitute official test data for that basic model. Such test data will be used by the Department to make a determination of compliance or noncompliance. (c) Sampling. The determination that a manufacturer's basic model complies with its labeled efficiency, or the applicable energy efficiency standard, shall be based on the testing conducted in accordance with the statistical sampling procedures set forth in Appendix B of this subpart and the test procedures specified for distribution transformers. (d) Test unit selection. The Department shall select a batch, a batch sample, and test units from the batch sample in accordance with the following provisions of this paragraph and the conditions specified in the test notice. (1) The batch may be subdivided by the Department utilizing criteria specified in the test notice. (2) The Department will then randomly select a batch sample of up to 20 units from one or more subdivided groups within the batch. The manufacturer shall keep on hand all units in the batch sample until such time as the basic model is determined to be in compliance or non- compliance. (3) The Department will randomly select individual test units comprising the test sample from the batch sample. (4) All random selection shall be achieved by sequentially numbering all of the units in a batch sample and then using a table of random numbers to select the units to be tested. (e) Test unit preparation. (1) Prior to and during the testing, a test unit selected in accordance with paragraph (d) of this section shall not be prepared, modified, or adjusted in any manner unless such preparation, modification, or adjustment is allowed by the applicable Department of Energy test procedure. (2) No quality control, testing, or assembly procedures shall be performed on a test unit, or any parts and sub-assemblies thereof, that is not performed during the production and assembly of all other units included in the basic model. (3) A test unit shall be considered defective if such unit is inoperative or is found to be in noncompliance due to failure of the unit to operate according to the manufacturer's design and operating instructions. Defective units, including those damaged due to shipping or handling, shall be reported immediately to the Department. The Department shall authorize testing of an additional unit on a case-by- case basis. (f) Testing at manufacturer's option. (1) If a manufacturer's basic model is determined to be in noncompliance with the applicable energy performance standard at the conclusion of Department testing in accordance with the sampling plan specified in Appendix B of this subpart, the manufacturer may request that the Department conduct additional testing of the basic model according to procedures set forth in Appendix B of this subpart and the test procedures specified for distribution transformers. (2) All units tested under this paragraph (f) shall be selected and tested in accordance with the provisions given in paragraphs (a)(9), (b), (d) and (e) of this section. (3) The manufacturer shall bear the cost of all testing conducted under this paragraph (f). (4) The manufacturer shall cease distribution of the basic model tested under the provisions of this paragraph from the time the manufacturer elects to exercise the option provided in this paragraph until the basic model is determined to be in compliance. The Department may seek civil penalties for all units distributed during such period. (5) If the additional testing results in a determination of compliance, a notice of allowance to resume distribution shall be issued by the Department. 0 7. Appendices A and B are added to subpart K, to read as follows: Appendix A to Subpart K of Part 431--Uniform Test Method for Measuring the Energy Consumption of Distribution Transformers 1.0 Definitions. The definitions contained in Sec. Sec. 431.2 and 431.192 are applicable to this Appendix A. 2.0 Accuracy Requirements. (a) Equipment and methods for loss measurement shall be sufficiently accurate that measurement error will be limited to the values shown in Table 2.1. Table 2.1.--Test System Accuracy Requirements for Each Measured Quantity ------------------------------------------------------------------------ Measured quantity Test system accuracy ------------------------------------------------------------------------ Power Losses.............................. 3.0% Voltage................................... 0.5% Current................................... 0.5% Resistance................................ 0.5% Temperature............................... 1.0 [deg]C ------------------------------------------------------------------------ (b) Only instrument transformers meeting the 0.3 metering accuracy class, or better, may be used under this test method. 3.0 Resistance Measurements 3.1 General Considerations (a) Measure or establish the winding temperature at the time of the winding resistance measurement. (b) Measure the direct current resistance (Rdc) of transformer windings by one of the methods outlined in section 3.3. The methods of section 3.5 must be used to correct load losses to the applicable reference temperature from the temperature at which they are measured. Observe precautions [[Page 25000]] while taking measurements, such as those in section 3.4, in order to maintain measurement uncertainty limits specified in Table 2.1. 3.2 Temperature Determination of Windings and Pre-conditions for Resistance Measurement. Make temperature measurements in protected areas where the air temperature is stable and there are no drafts. Determine the winding temperature (Tdc) for liquid-immersed and dry-type distribution transformers by the methods described in sections 3.2.1 and 3.2.2, respectively. 3.2.1 Liquid-Immersed Distribution Transformers. 3.2.1.1 Methods Record the winding temperature (Tdc) of liquid- immersed transformers as the average of either of the following: (a) The measurements from two temperature sensing devices (for example, thermocouples) applied to the outside of the transformer tank and thermally insulated from the surrounding environment, with one located at the level of the oil and the other located near the tank bottom or at the lower radiator header if applicable; or (b) The measurements from two temperature sensing devices immersed in the transformer liquid, with one located directly above the winding and other located directly below the winding. 3.2.1.2 Conditions Make this determination under either of the following conditions: (a) The windings have been under insulating liquid with no excitation and no current in the windings for four hours before the dc resistance is measured; or (b) The temperature of the insulating liquid has stabilized, and the difference between the top and bottom temperature does not exceed 5 [deg]C. 3.2.2 Dry-Type Distribution Transformers. Record the winding temperature (Tdc) of dry-type transformers as either of the following: (a) For ventilated dry-type units, use the average of readings of four or more thermometers, thermocouples, or other suitable temperature sensors inserted within the coils. Place the sensing points of the measuring devices as close as possible to the winding conductors. For sealed units, such as epoxy-coated or epoxy- encapsulated units, use the average of four or more temperature sensors located on the enclosure and/or cover, as close to different parts of the winding assemblies as possible; or (b) For both ventilated and sealed units, use the ambient temperature of the test area, under the following conditions: (1) All internal temperatures measured by the internal temperature sensors must not differ from the test area ambient temperature by more than 2 [deg]C. (2) Enclosure surface temperatures for sealed units must not differ from the test area ambient temperature by more than 2 [deg]C. (3) Test area ambient temperature should not have changed by more than 3 [deg]C for 3 hours before the test. (4) Neither voltage nor current has been applied to the unit under test for 24 hours. In addition, increase this initial 24 hour period by any added amount of time necessary for the temperature of the transformer windings to stabilize at the level of the ambient temperature. However, this additional amount of time need not exceed 24 hours. 3.3 Resistance Measurement Methods. Make resistance measurements using either the resistance bridge method, the voltmeter-ammeter method or a resistance meter. In each instance when this Uniform Test Method is used to test more than one unit of a basic model to determine the efficiency of that basic model, the resistance of the units being tested may be determined from making resistance measurements on only one of the units. 3.3.1 Resistance Bridge Methods. If the resistance bridge method is selected, use either the Wheatstone or Kelvin bridge circuit (or the equivalent of either). 3.3.1.1 Wheatstone Bridge (a) This bridge is best suited for measuring resistances larger than ten ohms. A schematic diagram of a Wheatstone bridge with a representative transformer under test is shown in Figure 3.1. [GRAPHIC] [TIFF OMITTED] TR27AP06.002 Where: Rdc is the resistance of the transformer winding being measured, Rs is a standard resistor having the resistance Rs, Ra, Rb are two precision resistors with resistance values Ra and Rb , respectively; at least one resistor must have a provision for resistance adjustment, Rt is a resistor for reducing the time constant of the circuit, D is a null detector, which may be either a micro ammeter or microvoltmeter or equivalent instrument for observing that no signal is present when the bridge is balanced, and Vdc is a source of dc voltage for supplying the power to the Wheatstone Bridge. (b) In the measurement process, turn on the source (Vdc), and adjust the resistance ratio (Ra/ Rb) to produce zero signal at the detector (D). Determine the winding resistance by using equation 3-1 as follows: [[Page 25001]] [GRAPHIC] [TIFF OMITTED] TR27AP06.003 3.3.1.2 Kelvin Bridge (a) This bridge separates the resistance of the connecting conductors to the transformer winding being measured from the resistance of the winding, and therefore is best suited for measuring resistances of ten ohms and smaller. A schematic diagram of a Kelvin bridge with a representative transformer under test is shown in Figure 3.2. [GRAPHIC] [TIFF OMITTED] TR27AP06.004 (b) The Kelvin Bridge has seven of the same type of components as in the Wheatstone Bridge. It has two more resistors than the Wheatstone bridge, Ra1 and Rb1. At least one of these resistors must have adjustable resistance. In the measurement process, the source is turned on, two resistance ratios (Ra/Rb) and (Ra1/Rb1) are adjusted to be equal, and then the two ratios are adjusted together to balance the bridge producing zero signal at the detector. Determine the winding resistance by using equation 3-2 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.005 as with the Wheatstone bridge, with an additional condition that: [GRAPHIC] [TIFF OMITTED] TR27AP06.006 (c) The Kelvin bridge provides two sets of leads, current- carrying and voltage-sensing, to the transformer terminals and the standard resistor, thus eliminating voltage drops from the measurement in the current-carrying leads as represented by Rd. 3.3.2 Voltmeter-Ammeter Method. (a) Employ the voltmeter-ammeter method only if the rated current of the winding is greater than one ampere and the test current is limited to 15 percent of the winding current. Connect the transformer winding under test to the circuit shown in Figure 3.3. [GRAPHIC] [TIFF OMITTED] TR27AP06.007 Where: A is an ammeter or a voltmeter-shunt combination for measuring the current (Imdc) in the transformer winding, V is a voltmeter with sensitivity in the millivolt range for measuring the voltage [[Page 25002]] (Vmdc) applied to the transformer winding, Rdc is the resistance of the transformer winding being measured, Rt is a resistor for reducing the time constant of the circuit, and Vdc is a source of dc voltage for supplying power to the measuring circuit. (b) To perform the measurement, turn on the source to produce current no larger than 15 percent of the rated current for the winding. Wait until the current and voltage readings have stabilized and then take simultaneous readings of voltage and current. Determine the winding resistance Rdc by using equation 3- 4 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.008 Where: Vmdc is the voltage measured by the voltmeter V, and Imdc is the current measured by the ammeter A. (c) As shown in Figure 3.3, separate current and voltage leads must be brought to the transformer terminals. (This eliminates the errors due to lead and contact resistance.) 3.3.3 Resistance Meters. Resistance meters may be based on voltmeter-ammeter, or resistance bridge, or some other operating principle. Any meter used to measure a transformer's winding resistance must have specifications for resistance range, current range, and ability to measure highly inductive resistors that cover the characteristics of the transformer being tested. Also the meter's specifications for accuracy must meet the applicable criteria of Table 2.1 in section 2.0. 3.4 Precautions in Measuring Winding Resistance. 3.4.1 Required actions. The following guidelines must be observed when making resistance measurements: (a) Use separate current and voltage leads when measuring small (< 10 ohms) resistance. (b) Use null detectors in bridge circuits, and measuring instruments in voltmeter-ammeter circuits, that have sensitivity and resolution sufficient to enable observation of at least 0.1 percent change in the measured resistance. (c) Maintain the dc test current at or below 15 percent of the rated winding current. (d) Inclusion of a stabilizing resistor Rt (see section 3.4.2) will require higher source voltage. (e) Disconnect the null detector (if a bridge circuit is used) and voltmeter from the circuit before the current is switched off, and switch off current by a suitable insulated switch. 3.4.2 Guideline for Time Constant. (a) The following guideline is suggested for the tester as a means to facilitate the measurement of resistance in accordance with the accuracy requirements of section 2.0: (b) The accurate reading of resistance Rdc may be facilitated by shortening the time constant. This is done by introducing a resistor Rt in series with the winding under test in both the bridge and voltmeter-ammeter circuits as shown in Figures 3.1 to 3.3. The relationship for the time constant is: [GRAPHIC] [TIFF OMITTED] TR27AP06.009 Where: Tc is the time constant in seconds, Ltc is the total magnetizing and leakage inductance of the winding under test, in henries, and Rtc is the total resistance in ohms, consisting of Rt in series with the winding resistance Rdc and the resistance Rs of the standard resistor in the bridge circuit. (c) Because Rtc is in the denominator of the expression for the time constant, increasing the resistance Rtc will decrease the time constant. If the time constant in a given test circuit is too long for the resistance readings to be stable, then a higher resistance can be substituted for the existing Rtc, and successive replacements can be made until adequate stability is reached. 3.5 Conversion of Resistance Measurements. (a) Resistance measurements must be corrected, from the temperature at which the winding resistance measurements were made, to the reference temperature. As specified in these test procedures, the reference temperature for liquid-immersed transformers loaded at 50 percent of the rated load is 55 [deg]C. For medium-voltage, dry- type transformers loaded at 50 percent of the rated load, and for low-voltage, dry-type transformers loaded at 35 percent of the rated load, the reference temperature is 75 [deg]C. (b) Correct the measured resistance to the resistance at the reference temperature using equation 3-6 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.010 Where: Rts is the resistance at the reference temperature, Ts, Rdc is the measured resistance at temperature, Tdc, Ts is the reference temperature in [deg]C, Tdc is the temperature at which resistance was measured in [deg]C, and Tk is 234.5 [deg]C for copper or 225 [deg]C for aluminum. 4.0 Loss Measurement 4.1 General Considerations. The efficiency of a transformer is computed from the total transformer losses, which are determined from the measured value of the no-load loss and load loss power components. Each of these two power loss components is measured separately using test sets that are identical, except that shorting straps are added for the load- loss test. The measured quantities will need correction for instrumentation losses and may need corrections for known phase angle errors in measuring equipment and for the waveform distortion in the test voltage. Any power loss not measured at the applicable reference temperature must be adjusted to that reference temperature. The measured load loss must also be adjusted to a specified output loading level if not measured at the specified output loading level. Test distribution transformers designed for harmonic currents using a sinusoidal waveform (k=1). 4.2 Measurement of Power Losses. 4.2.1 No-Load Loss. Measure the no-load loss and apply corrections as described in section 4.4, using the appropriate test set as described in section 4.3. 4.2.2 Load Loss. Measure the load loss and apply corrections as described in section 4.5, using the appropriate test set as described in section 4.3. 4.3 Test Sets. (a) The same test set may be used for both the no-load loss and load loss measurements provided the range of the test set encompasses the test requirements of both tests. Calibrate the test set to national standards to meet the tolerances in Table 2.1 in section 2.0. In addition, the wattmeter, current measuring system and voltage measuring system must be calibrated separately if the overall test set calibration is outside the tolerance as specified in section 2.0 or the individual phase angle error exceeds the values specified in section 4.5.3. (b) A test set based on the wattmeter-voltmeter-ammeter principle may be used to measure the power loss and the applied voltage and current of a transformer where the transformer's test current and voltage are within the measurement capability of the measuring instruments. Current and voltage transformers, known collectively as instrument transformers, or other scaling devices such as resistive or capacitive dividers for voltage, may be used in the above circumstance, and must be used together with instruments to measure current, voltage, or power where the current or voltage of the transformer under test exceeds the measurement capability of such instruments. Thus, a test set may include a combination of measuring instruments and instrument transformers (or other scaling devices), so long as the current or voltage of the transformer under test does not exceed the measurement capability of any of the instruments. 4.3.1 Single-Phase Test Sets. Use these for testing single-phase distribution transformers. 4.3.1.1 Without Instrument Transformers. (a) A single-phase test set without an instrument transformer is shown in Figure 4.1. [[Page 25003]] [GRAPHIC] [TIFF OMITTED] TR27AP06.011 Where: W is a wattmeter used to measure Pnm and Plm, the no-load and load loss power, respectively, Vrms is a true root-mean-square (rms) voltmeter used to measure Vr(nm) and Vlm, the rms test voltages in no-load and load loss measurements, respectively, Vav is an average sensing voltmeter, calibrated to indicate rms voltage for sinusoidal waveforms and used to measure Va(nm), the average voltage in no-load loss measurements, A is an rms ammeter used to measure test current, especially Ilm, the load loss current, and (SC) is a conductor for providing a short-circuit across the output windings for the load loss measurements. (b) Either the primary or the secondary winding can be connected to the test set. However, more compatible voltage and current levels for the measuring instruments are available if for no-load loss measurements the secondary (low voltage) winding is connected to the test set, and for load loss measurements the primary winding is connected to the test set. Use the average-sensing voltmeter, Vav, only in no-load loss measurements. 4.3.1.2 With Instrument Transformers. A single-phase test set with instrument transformers is shown in Figure 4.2. This circuit has the same four measuring instruments as that in Figure 4.1. The current and voltage transformers, designated as (CT) and (VT), respectively, are added. [GRAPHIC] [TIFF OMITTED] TR27AP06.012 4.3.2 Three-Phase Test Sets. Use these for testing three-phase distribution transformers. Use in a four-wire, three-wattmeter test circuit. 4.3.2.1 Without Instrument Transformers. (a) A three-phase test set without instrument transformers is shown in Figure 4.3. This test set is essentially the same circuit shown in Figure 4.1 repeated three times, and the instruments are individual devices as shown. As an alternative, the entire instrumentation system of a three-phase test set without transformers may consist of a multi-function analyzer. [[Page 25004]] [GRAPHIC] [TIFF OMITTED] TR27AP06.013 (b) Either group of windings, the primary or the secondary, can be connected in wye or delta configuration. If both groups of windings are connected in the wye configuration for the no-load test, the neutral of the winding connected to the test set must be connected to the neutral of the source to provide a return path for the neutral current. (c) In the no-load loss measurement, the voltage on the winding must be measured. Therefore a provision must be made to switch the voltmeters for line-to-neutral measurements for wye-connected windings and for line-to-line measurements for delta-connected windings. 4.3.2.2 With Instrument Transformers. A three-phase test set with instrument transformers is shown in Figure 4.4. This test set is essentially the same circuit shown in Figure 4.2 repeated three times. Provision must be made to switch the voltmeters for line-to-neutral and line-to-line measurements as in section 4.3.2.1. The voltage sensors (``coils'') of the wattmeters must always be connected in the line-to-neutral configuration. [GRAPHIC] [TIFF OMITTED] TR27AP06.014 [[Page 25005]] 4.3.2.3 Test Set Neutrals. If the power source in the test circuit is wye-connected, ground the neutral. If the power source in the test circuit is delta- connected, use a grounding transformer to obtain neutral and ground for the test. 4.4 No-Load Losses: Measurement and Calculations. 4.4.1 General Considerations. Measurement corrections are permitted but not required for instrumentation losses and for losses from auxiliary devices. Measurement corrections are required: (a) When the waveform of the applied voltage is non-sinusoidal; and (b) When the core temperature or liquid temperature is outside the 20 [deg]C 10 [deg]C range. 4.4.2 No-Load Loss Test. (a) The purpose of the no-load loss test is to measure no-load losses at a specified excitation voltage and a specified frequency. The no-load loss determination must be based on a sine-wave voltage corrected to the reference temperature. Connect either of the transformer windings, primary or secondary, to the appropriate test set of Figures 4.1 to 4.4, giving consideration to section 4.4.2(a)(2). Leave the unconnected winding(s) open circuited. Apply the rated voltage at rated frequency, as measured by the average- sensing voltmeter, to the transformer. Take the readings of the wattmeter(s) and the average-sensing and true rms voltmeters. Observe the following precautions: (1) Voltmeter connections. When correcting to a sine-wave basis using the average-voltmeter method, the voltmeter connections must be such that the waveform applied to the voltmeters is the same as the waveform across the energized windings. (2) Energized windings. Energize either the high voltage or the low voltage winding of the transformer under test. (3) Voltage and frequency. The no-load loss test must be conducted with rated voltage impressed across the transformer terminals using a voltage source at a frequency equal to the rated frequency of the transformer under test. (b) Adjust the voltage to the specified value as indicated by the average-sensing voltmeter. Record the values of rms voltage, rms current, electrical power, and average voltage as close to simultaneously as possible. For a three-phase transformer, take all of the readings on one phase before proceeding to the next, and record the average of the three rms voltmeter readings as the rms voltage value. Note: When the tester uses a power supply that is not synchronized with an electric utility grid, such as a dc/ac motor- generator set, check the frequency and maintain it within 0.5 percent of the rated frequency of the transformer under test. A power source that is directly connected to, or synchronized with, an electric utility grid need not be monitored for frequency. 4.4.3 Corrections. 4.4.3.1 Correction for Instrumentation Losses. Measured losses attributable to the voltmeters and wattmeter voltage circuit, and to voltage transformers if they are used, may be deducted from the total no-load losses measured during testing. 4.4.3.2 Correction for Non-Sinusoidal Applied Voltage. (a) The measured value of no-load loss must be corrected to a sinusoidal voltage, except when waveform distortion in the test voltage causes the magnitude of the correction to be less than 1 percent. In such a case, no correction is required. (b) To make a correction where the distortion requires a correction of 5 percent or less, use equation 4-1. If the distortion requires a correction to be greater than 5 percent, improve the test voltage and re-test. Repeat until the distortion requires a correction of 5 percent or less. (c) Determine the no-load losses of the transformer corrected for sine-wave basis from the measured value by using equation 4-1 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.015 Where: Pncl is the no-load loss corrected to a sine-wave basis at the temperature (Tnm) at which no-load loss is measured, Pnm is the measured no-load loss at temperature Tnm, P1 is the per unit hysteresis loss, P2 is the per unit eddy-current loss, P1 + P2 = 1, [GRAPHIC] [TIFF OMITTED] TR27AP06.016 Vr(nm) is the test voltage measured by rms voltmeter, and Va(nm) is the test voltage measured by average-voltage voltmeter. (d) The two loss components (P1 and P2) are assumed equal in value, each assigned a value of 0.5 per unit, unless the actual measurement-based values of hysteresis and eddy- current losses are available (in per unit form), in which case the actual measurements apply. 4.4.3.3 Correction of No-Load Loss to Reference Temperature. After correcting the measured no-load loss for waveform distortion, correct the loss to the reference temperature of 20 [deg]C. If the no-load loss measurements were made between 10 [deg]C and 30 [deg]C, this correction is not required. If the correction to reference temperature is applied, then the core temperature of the transformer during no-load loss measurement (Tnm) must be determined within 10 [deg]C of the true average core temperature. Correct the no-load loss to the reference temperature by using equation 4-2 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.017 Where: Pnc is the no-load losses corrected for waveform distortion and then to the reference temperature of 20 [deg]C, Pnc1 is the no-load losses, corrected for waveform distortion, at temperature Tnm, Tnm is the core temperature during the measurement of no- load losses, and Tnr is the reference temperature, 20 [deg]C. 4.5 Load Losses: Measurement and Calculations. 4.5.1 General Considerations. (a) The load losses of a transformer are those losses incident to a specified load carried by the transformer. Load losses consist of ohmic loss in the windings due to the load current and stray losses due to the eddy currents induced by the leakage flux in the windings, core clamps, magnetic shields, tank walls, and other conducting parts. The ohmic loss of a transformer varies directly with temperature, whereas the stray losses vary inversely with temperature. (b) For a transformer with a tap changer, conduct the test at the rated current and rated-voltage tap position. For a transformer that has a configuration of windings which allows for more than one nominal rated voltage, determine its load losses either in the winding configuration in which the highest losses occur or in each winding configuration in which the transformer can operate. 4.5.2 Tests for Measuring Load Losses. (a) Connect the transformer with either the high-voltage or low- voltage windings to the appropriate test set. Then short-circuit the winding that was not connected to the test set. Apply a voltage at the rated frequency (of the transformer under test) to the connected windings to produce the rated current in the transformer. Take the readings of the wattmeter(s), the ammeters(s), and rms voltmeter(s). (b) Regardless of the test set selected, the following preparatory requirements must be satisfied for accurate test results: (1) Determine the temperature of the windings using the applicable method in section 3.2.1 or section 3.2.2. (2) The conductors used to short-circuit the windings must have a cross-sectional area equal to, or greater than, the corresponding transformer leads, or, if the tester uses a different method to short-circuit the windings, the losses in the short-circuiting conductor assembly must be less than 10 percent of the transformer's load losses. (3) When the tester uses a power supply that is not synchronized with an electric utility grid, such as a dc/ac motor-generator set, follow the provisions of the ``Note'' in section 4.4.2. 4.5.3 Corrections. 4.5.3.1 Correction for Losses from Instrumentation and Auxiliary Devices. 4.5.3.1.1 Instrumentation Losses. Measured losses attributable to the voltmeters, wattmeter voltage circuit and short-circuiting conductor (SC), and to the voltage transformers if they are used, may be deducted from the total load losses measured during testing. 4.5.3.1.2 Losses from Auxiliary Devices. Measured losses attributable to auxiliary devices (e.g., circuit breakers, fuses, switches) installed in the transformer, if any, that are not part of the winding and core assembly, may be excluded from load losses measured during testing. To exclude these losses, either (1) measure transformer losses without the auxiliary devices by removing or by-passing them, or (2) measure transformer losses with the auxiliary devices connected, determine the losses associated with the [[Page 25006]] auxiliary devices, and deduct these losses from the load losses measured during testing. 4.5.3.2 Correction for Phase Angle Errors. (a) Corrections for phase angle errors are not required if the instrumentation is calibrated over the entire range of power factors and phase angle errors. Otherwise, determine whether to correct for phase angle errors from the magnitude of the normalized per unit correction, [beta]n, obtained by using equation 4-3 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.018 (b) The correction must be applied if [beta]n is outside the limits of 0.01. If [beta]n is within the limits of 0.01, the correction is permitted but not required. (c) If the correction for phase angle errors is to be applied, first examine the total system phase angle ([beta]w - [beta]v + [beta]c). Where the total system phase angle is equal to or less than 12 milliradians (41 minutes), use either equation 4-4 or 4-5 to correct the measured load loss power for phase angle errors, and where the total system phase angle exceeds 12 milliradians (41 minutes) use equation 4-5, as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.019 [GRAPHIC] [TIFF OMITTED] TR27AP06.020 (d) The symbols in this section (4.5.3.2) have the following meanings: Plc1 is the corrected wattmeter reading for phase angle errors, Plm is the actual wattmeter reading, Vlm is the measured voltage at the transformer winding, Ilm is the measured rms current in the transformer winding, [GRAPHIC] [TIFF OMITTED] TR27AP06.021 is the measured phase angle between Vlm and Ilm, [beta]w is the phase angle error (in radians) of the wattmeter; the error is positive if the phase angle between the voltage and current phasors as sensed by the wattmeter is smaller than the true phase angle, thus effectively increasing the measured power, [beta]v is the phase angle error (in radians) of the voltage transformer; the error is positive if the secondary voltage leads the primary voltage, and [beta]c is the phase angle error (in radians) of the current transformer; the error is positive if the secondary current leads the primary current. (e) The instrumentation phase angle errors used in the correction equations must be specific for the test conditions involved. 4.5.3.3 Temperature Correction of Load Loss. (a) When the measurement of load loss is made at a temperature Tlm that is different from the reference temperature, use the procedure summarized in the equations 4-6 to 4-10 to correct the measured load loss to the reference temperature. The symbols used in these equations are defined at the end of this section. (b) Calculate the ohmic loss (Pe) by using equation 4-6 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.022 (c) Obtain the stray loss by subtracting the calculated ohmic loss from the measured load loss, by using equation 4-7 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.023 (d) Correct the ohmic and stray losses to the reference temperature for the load loss by using equations 4-8 and 4-9, respectively, as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.024 [GRAPHIC] [TIFF OMITTED] TR27AP06.025 (e) Add the ohmic and stray losses, corrected to the reference temperature, to give the load loss, Plc2, at the reference temperature, by using equation 4-10 as follows: [[Page 25007]] [GRAPHIC] [TIFF OMITTED] TR27AP06.026 (f) The symbols in this section (4.5.3.3) have the following meanings: Ilm(p) is the primary current in amperes, Ilm(s) is the secondary current in amperes, Pe is the ohmic loss in the transformer in watts at the temperature Tlm, Pe(p) is the ohmic loss in watts in the primary winding at the temperature Tlm, Pe(s) is the ohmic loss in watts in the secondary winding at the temperature Tlm, Per is the ohmic loss in watts corrected to the reference temperature, Plc1 is the measured load loss in watts, corrected for phase angle error, at the temperature Tlm, Plc2 is the load loss at the reference temperature, Ps is the stray loss in watts at the temperature Tlm, Psr is the stray loss in watts corrected to the reference temperature, Rdc(p) is the measured dc primary winding resistance in ohms, Rdc(s) is the measured dc secondary winding resistance in ohms, Tk is the critical temperature in degrees Celsius for the material of the transformer windings. Where copper is used in both primary and secondary windings, Tk is 234.5 [deg]C; where aluminum is used in both primary and secondary windings, Tk is 225 [deg]C; where both copper and aluminum are used in the same transformer, the value of 229 [deg]C is used for Tk, Tk(p) is the critical temperature in degrees Celsius for the material of the primary winding: 234.5 [deg]C if copper and 225 [deg]C if aluminum, Tk(s) is the critical temperature in degrees Celsius for the material of the secondary winding: 234.5 [deg]C if copper and 225 [deg]C if aluminum, Tlm is the temperature in degrees Celsius at which the load loss is measured, Tlr is the reference temperature for the load loss in degrees Celsius, Tdc is the temperature in degrees Celsius at which the resistance values are measured, and N1/N2 is the ratio of the number of turns in the primary winding (N1) to the number of turns in the secondary winding (N2); for a primary winding with taps, N1 is the number of turns used when the voltage applied to the primary winding is the rated primary voltage. 5.0 Determining the Efficiency Value of the Transformer This section presents the equations to use in determining the efficiency value of the transformer at the required reference conditions and at the specified loading level. The details of measurements are described in sections 3.0 and 4.0. For a transformer that has a configuration of windings which allows for more than one nominal rated voltage, determine its efficiency either at the voltage at which the highest losses occur or at each voltage at which the transformer is rated to operate. 5.1 Output Loading Level Adjustment. If the output loading level for energy efficiency is different from the level at which the load loss power measurements were made, then adjust the corrected load loss power, Plc2, by using equation 5-1 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.028 Where: Plc is the adjusted load loss power to the specified energy efficiency load level, Plc2 is as calculated in section 4.5.3.3, Por is the rated transformer apparent power (name plate), Pos is the specified energy efficiency load level, where , and Pos = PorL2, and L is the per unit load level, e.g., if the load level is 50 percent then ``L'' will be 0.5. 5.2 Total Loss Power Calculation. Calculate the corrected total loss power by using equation 5-2 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.029 Where: Pts is the corrected total loss power adjusted for the transformer output loading specified by the standard, Pnc is as calculated in section 4.4.3.3, and Plc is as calculated in section 5.1. 5.3 Energy Efficiency Calculation. Calculate efficiency ([eta]) in percent at specified energy efficiency load level, Pos, by using equation 5-3 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.030 Where: Pos is as described and calculated in section 5.1, and Pts is as described and calculated in section 5.2. 5.4 Significant Figures in Power Loss and Efficiency Data. In measured and calculated data, retain enough significant figures to provide at least 1 percent resolution in power loss data and 0.01 percent resolution in efficiency data. 6.0 Test Equipment Calibration and Certification Maintain and calibrate test equipment and measuring instruments, maintain calibration records, and perform other test and measurement quality assurance procedures according to the following sections. The calibration of the test set must confirm the accuracy of the test set to that specified in section 2.0, Table 2.1. 6.1 Test Equipment. The party performing the tests shall control, calibrate and maintain measuring and test equipment, whether or not it owns the equipment, has the equipment on loan, or the equipment is provided by another party. Equipment shall be used in a manner which assures that measurement uncertainty is known and is consistent with the required measurement capability. 6.2 Calibration and Certification. The party performing the tests must: (a) Identify the measurements to be made, the accuracy required (section 2.0) and select the appropriate measurement and test equipment; (b) At prescribed intervals, or prior to use, identify, check and calibrate, if needed, all measuring and test equipment systems or devices that affect test accuracy, against certified equipment having a known valid relationship to nationally recognized standards; where no such standards exist, the basis used for calibration must be documented; (c) Establish, document and maintain calibration procedures, including details of equipment type, identification number, location, frequency of checks, check method, acceptance criteria and action to be taken when results are unsatisfactory; (d) Ensure that the measuring and test equipment is capable of the accuracy and precision necessary, taking into account the voltage, current and power factor of the transformer under test; (e) Identify measuring and test equipment with a suitable indicator or approved identification record to show the calibration status; (f) Maintain calibration records for measuring and test equipment; [[Page 25008]] (g) Assess and document the validity of previous test results when measuring and test equipment is found to be out of calibration; (h) Ensure that the environmental conditions are suitable for the calibrations, measurements and tests being carried out; (i) Ensure that the handling, preservation and storage of measuring and test equipment is such that the accuracy and fitness for use is maintained; and (j) Safeguard measuring and test facilities, including both test hardware and test software, from adjustments which would invalidate the calibration setting. Appendix B to Subpart K of Part 431--Sampling Plan for Enforcement Testing Step 1. The number of units in the sample (m1) shall be in accordance with Sec. Sec. 431.198(a)(4), 431.198(a)(5), 431.198(a)(6) and 431.198(a)(7) and shall not be greater than twenty. The number of tests in the first sample (n1) shall be in accordance with Sec. 431.198(a)(8) and shall be not fewer than four. Step 2. Compute the mean (Xi) of the measured energy performance of the n1 tests in the first sample by using equation 1 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.031 where Xi is the measured efficiency of test i. Step 3. Compute the sample standard deviation (S1) of the measured efficiency of the n1 tests in the first sample by using equation 2 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.032 Step 4. Compute the standard error (SE(X1)) of the mean efficiency of the first sample by using equation 3 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.033 Step 5. Compute the sample size discount (SSD(m1)) by using equation 4 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.034 where m1 is the number of units in the sample, and RE is the applicable EPCA efficiency when the test is to determine compliance with the applicable statutory standard, or is the labeled efficiency when the test is to determine compliance with the labeled efficiency value. Step 6. Compute the lower control limit (LCL1) for the mean of the first sample by using equation 5 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.035 where t is the 2.5th percentile of a t-distribution for a sample size of n1, which yields a 97.5 percent confidence level for a one-tailed t-test. Step 7. Compare the mean of the first sample (X1) with the lower control limit (LCL1) to determine one of the following: (i) If the mean of the first sample is below the lower control limit, then the basic model is in non-compliance and testing is at an end. (ii) If the mean is equal to or greater than the lower control limit, no final determination of compliance or non-compliance can be made; proceed to Step 8. Step 8. Determine the recommended sample size (n) by using equation 6 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.036 where S1 and t have the values used in Steps 3 and 6, respectively. The factor [GRAPHIC] [TIFF OMITTED] TR27AP06.037 is based on an 8-percent tolerance in the total power loss. Given the value of n, determine one of the following: (i) If the value of n is less than or equal to n1 and if the mean energy efficiency of the first sample (X1) is equal to or greater than the lower control limit (LCL1), the basic model is in compliance and testing is at an end. (ii) If the value of n is greater than n1, and no additional units are available for testing, testing is at an end and the basic model is in non-compliance. If the value of n is greater than n1, and additional units are available for testing, select a second sample n2. The size of the n2 sample is determined to be the smallest integer equal to or greater than the difference n-n1. If the value of n2 so calculated is greater than 20-n1, set n2 equal to 20-n1. Step 9. After testing the n2 sample, compute the combined mean (X2) of the measured energy performance of the n1 and n2 tests of the combined first and second samples by using equation 7 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.038 Step 10. Compute the standard error (SE(X2)) of the mean efficiency of the n1 and n2 tests in the combined first and second samples by using equation 8 as follows: [GRAPHIC] [TIFF OMITTED] TR27AP06.039 (Note that S1 is the value obtained above in Step 3.) Step 11. Set the lower control limit (LCL2) to, [GRAPHIC] [TIFF OMITTED] TR27AP06.040 where t has the value obtained in Step 5 and SSD(m1) is sample size discount from Step 5. Compare the combined sample mean (X2) to the lower control limit (LCL2) to find one of the following: (i) If the mean of the combined sample (X2) is less than the lower control limit (LCL2), the basic model is in non-compliance and testing is at an end. (ii) If the mean of the combined sample (X2) is equal to or greater than the lower control limit (LCL2), the basic model is in compliance and testing is at an end. Manufacturer-Option Testing If a determination of non-compliance is made in Steps 6, 7 or 11, above, the manufacturer may request that additional testing be conducted, in accordance with the following procedures. Step A. The manufacturer requests that an additional number, n3, of units be tested, with n3 chosen such that n1+n2+n3 does not exceed 20. Step B. Compute the mean efficiency, standard error, and lower control limit of the new combined sample in accordance with the procedures prescribed in Steps 8, 9, and 10, above. Step C. Compare the mean performance of the new combined sample to the lower control limit (LCL2) to determine one of the following: (a) If the new combined sample mean is equal to or greater than the lower control limit, the basic model is in compliance and testing is at an end. (b) If the new combined sample mean is less than the lower control limit and the value of n1+n2+n3 is less than 20, the manufacturer may request that additional units be tested. The total of all units tested may not exceed 20. Steps A, B,and C are then repeated. (c) Otherwise, the basic model is determined to be in non- compliance. [FR Doc. 06-3165 Filed 4-26-06; 8:45 am] BILLING CODE 6450-01-P

usgpo

2024-10-08T14:08:35.346859

FR

FR-2006-04-27/06-3897

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Proposed Rules] [Pages 25010-25057] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3897] [[Page 25009]] ----------------------------------------------------------------------- Part IV Department of Agriculture ----------------------------------------------------------------------- Animal and Plant Health Inspection Service ----------------------------------------------------------------------- 7 CFR Parts 305, 319, and 352 Revision of Fruits and Vegetables Import Regulations; Proposed Rule Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Proposed Rules [[Page 25010]] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Parts 305, 319, and 352 [Docket No. APHIS-2005-0106] RIN 0579-AB80 Revision of Fruits and Vegetables Import Regulations AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule and notice of public hearings. ----------------------------------------------------------------------- SUMMARY: We are proposing to revise and reorganize the regulations pertaining to the importation of fruits and vegetables to consolidate requirements of general applicability and eliminate redundant requirements, update terms and remove outdated requirements and references, update the regulations that apply to importations into territories under U.S. administration, and make various editorial and nonsubstantive changes to regulations to make them easier to use. We are also proposing to make substantive changes to the regulations, including: Establishing criteria within the regulations that, if met, would allow us to approve certain new fruits and vegetables for importation into the United States and to acknowledge pest-free areas in foreign countries more effectively and expeditiously; doing away with the practice of listing specific commodities that may be imported subject to certain types of phytosanitary measures; and providing for the issuance of special use permits for fruits and vegetables. These changes are intended to simplify and expedite our processes for approving certain new imports and pest-free areas while continuing to allow for public participation in the processes. This proposal, if adopted, would represent a significant structural revision of the fruits and vegetables import regulations and would establish a new process for approving certain new commodities for importation into the United States. It would not, however, allow the importation of any specific new fruits or vegetables, nor would it alter the conditions for importing currently approved fruits or vegetables except as specifically described in this document. To the extent to which trading partners consider the time it takes to conduct the rulemaking process a trade barrier, by reducing that time, these proposed changes may facilitate the export of U.S. agricultural commodities. The proposed changes would not alter the manner in which the risk associated with a commodity import request is evaluated, nor would it alter the manner in which those risks are ultimately mitigated. DATES: We will consider all comments that we receive on or before July 26, 2006. We will also consider comments made at public hearings to be held in Seattle, WA, on May 23, 2006; in Los Angeles, CA, on May 24, 2006; in Miami, FL, on May 26, 2006; and in Washington, DC, on June 20, 2006. ADDRESSES: You may submit comments by either of the following methods: Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the ``Search for Open Regulations'' box, select ``Animal and Plant Health Inspection Service'' from the agency drop-down menu, then click on ``Submit.'' In the Docket ID column, select APHIS-2005-0106 to submit or view public comments and to view supporting and related materials available electronically. After the close of the comment period, the docket can be viewed using the ``Advanced Search'' function in Regulations.gov. Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. APHIS- 2005-0106, Regulatory Analysis and Development, PPD, APHIS, Station 3A- 03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2005-0106. Public Hearings: Public hearings regarding this rule will be held at the following locations: 1. Seattle, WA: Seattle Renaissance Hotel, 515 Madison Street, Seattle, WA. 2. Los Angeles, CA: The Westin Los Angeles Airport, 5400 West Century Boulevard, Los Angeles, CA. 3. Miami, FL: Hilton Miami Airport, 5101 Blue Lagoon Drive, Miami, FL. 4. Washington, DC: USDA Jamie L. Whitten Building, 1400 Independence Avenue, SW., Washington, DC. Reading Room: You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming. Other Information: Additional information about APHIS and its programs is available on the Internet at http://www.aphis.usda.gov. FOR FURTHER INFORMATION CONTACT: Regarding the proposed commodity import request evaluation process, contact Mr. Matthew Rhoads, Planning, Analysis, and Regulatory Coordination, PPQ, APHIS, 4700 River Road, Unit 141, Riverdale, MD 20737; (301) 734-8790. Regarding import conditions for particular commodities, contact Ms. Donna L. West, Senior Import Specialist, Commodity Import Analysis and Operations, PPQ-PRI, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737; (301) 734-8758. SUPPLEMENTARY INFORMATION: Public Hearings We are advising the public that we are hosting four public hearings on this proposed rule. The first public hearing will be held in Seattle, WA, on Tuesday, May 23, 2006 from 9 a.m. to 1 p.m., local time. The second public hearing will be held in Los Angeles, CA, on Wednesday, May 24, 2006, from 1 p.m. to 5 p.m., local time. The third public hearing will be held in Miami, FL, on Friday, May 26, 2006, from 9 a.m. to 1 p.m., local time. The fourth public hearing will be held in Washington, DC, on June 20, 2006, from 9 a.m. to 1 p.m., local time. A representative of the Animal and Plant Health Inspection Service will preside at the public hearings. Any interested person may appear and be heard in person, by attorney, or by other representative. Written statements may be submitted and will be made part of the hearing record. A transcript of the public hearings will be placed in the rulemaking record and will be available for public inspection. The purpose of the hearings is to give interested persons an opportunity for presentation of data, views, and arguments. Questions about the content of the proposed rule may be part of the commenters' oral presentations. However, neither the presiding officer nor any other representative of APHIS will respond to comments at the hearings, except to clarify or explain provisions of the proposed rule. The presiding officer may limit the time for each presentation so that all interested persons appearing at each hearing have an opportunity to participate. Each hearing may be terminated at any time if all persons desiring to speak and that are present in the hearing room have been heard. Registration for the hearings may be accomplished by registering with the presiding officer 30 minutes prior to the scheduled start of each hearing. Persons who wish to speak at a hearing will be asked to sign in with their name and organization to establish a record for the [[Page 25011]] hearing. We ask that anyone who reads a statement provide two copies to the presiding officer at the hearing. Persons wishing to speak at one or both of the public hearings may register in advance by phone or e-mail. Persons wishing to register by phone should call the Regulatory Analysis and Development voice mail at (301) 734-8138. Callers must leave a message clearly stating (1) the location of the hearing the registrant wishes to speak at, and (2) the registrant's name and organization. Persons wishing to register by e- mail must send an e-mail with the same information described above to http://[email protected]. Please write the location of the hearing you wish to attend in the subject line. Advance registration for the hearings must be received by 3 p.m. on the day prior to the hearing you wish to attend. Additional information on the hearings, including parking information, can be found on the Internet at http://www.aphis.usda.gov/ppq/Q56. If you require special accommodations, such as a sign language interpreter, please contact the person listed under FOR FURTHER INFORMATION CONTACT. Background Under the regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 319.56 through 319.56-8, referred to below as the regulations or the fruits and vegetables regulations) the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA or the Department) prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plants pests from being introduced into and spread within the United States. In this document, we are proposing to revise and reorganize the fruits and vegetables regulations to consolidate requirements of general applicability and eliminate redundant requirements, update terms and remove outdated requirements and references, update the regulations that apply to importations of fruits and vegetables into U.S. territories, and make various editorial and nonsubstantive changes to regulations to make them easier to use. We are also proposing to make substantive changes to the regulations, including: (1) Establishing criteria within the regulations that, if met, would allow APHIS to approve certain new fruits and vegetables for importation into the United States and to acknowledge pest-free areas in foreign countries more effectively and expeditiously; (2) doing away with the process of listing, in the regulations, specific commodities that may be imported subject to certain types of phytosanitary measures; and (3) providing for the issuance of special use permits for fruits and vegetables. These changes are necessary to simplify and expedite the APHIS processes for approving new imports and pest-free areas while continuing to allow for public participation in the process. This proposal, if adopted, would represent a significant structural revision of the regulations, and would establish a new process for approving certain new commodities for importation into the United States. It would not, however, allow the importation of any specific new fruits or vegetables, nor would it alter the conditions for importing currently approved fruits or vegetables except as specifically described in this document. The Current Regulations Currently, the regulations prohibit the importation into the United States of fruits and vegetables covered by the subpart,\1\ unless the regulations specifically allow the importation of the particular fruit or vegetable. --------------------------------------------------------------------------- \1\ The importation of citrus fruits is regulated under Subpart--Citrus Fruit (Sec. 319.28). --------------------------------------------------------------------------- The regulations can be roughly divided into two categories: Requirements of general applicability (contained in Sec. Sec. 319.56 through 319.56-2 and Sec. Sec. 319.56-3 through 319.56-8) and commodity-specific requirements (contained in Sec. Sec. 319.56-2a through 319.56-2oo). Under the regulations, all approved fruit and vegetable imports are subject to some type of restriction to ensure that the imported fruit or vegetable does not act as a pathway for the introduction of plant pests or noxious weeds into the United States. These restrictions are known as phytosanitary measures, and include any activities that have the effect of reducing the plant pest risk posed by an imported fruit or vegetable. In nearly all cases, more than one phytosanitary measure must be applied to each type of imported fruit or vegetable for the commodity to be allowed importation into the United States. In the most typical scenario, fruits and vegetables must be imported under permit and are subject to inspection, and, if necessary, treatment, at the port of first arrival in the United States. These requirements are referred to elsewhere in this document as universal requirements. A partial list of commodities that may be imported under these conditions may be found in Sec. 319.56-2t of the current regulations. Other commodities must always be treated for pests before arriving at a U.S. port of entry, in addition to meeting these universal requirements. A partial list of such commodities may be found in Sec. 319.56-2x of the current regulations.\2\ Certain other fruits and vegetables must meet additional requirements (in some cases, called ``systems approaches'') to be eligible for importation into the United States. Such measures include sampling regimens, pest surveys, packing requirements, and other measures determined to be necessary to mitigate the pest risk posed by the particular commodity. Requirements for importing these commodities may be found in Sec. Sec. 319.56-2a through 319.56-2oo. --------------------------------------------------------------------------- \2\ Some commodities listed in Sec. Sec. 319.56-2t and 319.56- 2x require additional phytosanitary measures beyond requirements that they be imported under permit and are subject to inspection at the port of first arrival in the United States. Such requirements include special box markings and phytosanitary certifications by foreign national plant protection organizations. --------------------------------------------------------------------------- Proposed Revisions Reorganization of the Regulations and Consolidation of Similar Provisions In this document, we are proposing to reorganize the regulations to make them easier to understand and use. Specifically, we are proposing to consolidate all requirements of general applicability into one section (proposed Sec. 319.56-3, ``General requirements for all imported fruits and vegetables''). Currently, general requirements are located in various sections (Sec. Sec. 319.56 through 319.56-2 and 319.56-3 through 319.56-8) of the regulations, and several such provisions are repeated throughout the commodity-specific sections (Sec. Sec. 319.56-2a through 319.56-2oo). If this proposal is adopted, all requirements of general applicability would be located at the beginning of the regulations, followed by all commodity-specific requirements, and redundant references to general requirements that are contained in commodity specific regulations would be removed. In order to facilitate review of this proposal, which, if adopted, would relocate all current provisions to new sections within the regulations, we have prepared a cross-reference table that links the current provisions with the proposed provisions. The cross reference document may be viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov.) and may be obtained by contacting the person listed under FOR FURTHER INFORMATION CONTACT. The cross reference document may also be viewed in our reading room [[Page 25012]] (information on the location and hours of the reading room is provided under the heading ADDRESSES at the beginning of this proposed rule). Further, for ease of reference, we provide the following outline of the proposed revision: Requirements of General Applicability Sec. 319.56-1 Notice of quarantine. Sec. 319.56-2 Definitions. Sec. 319.56-3 General requirements for all imported fruits and vegetables. (a) Freedom from plants and portions of plants. (b) Permit. (c) Ports of entry. (d) Inspection, treatment, and other requirements. (e) Costs and charges for APHIS services. (f) Responsibility for damages arising from quarantine actions or procedures. Sec. 319.56-4 Approval of certain fruits and vegetables for importation. (a) Determination by the Administrator. (b) Designated phytosanitary measures. (c) Fruit and vegetables authorized importation under this section. (d) Amendment of import requirements. Sec. 319.56-5 Pest-free areas. Sec. 319.56-6 Trust fund agreements. Sec. 319.56-7 Territorial applicability and exceptions. Sec. Sec. 319.56-8 through 319.56-9 [Reserved] Commodity-Specific Requirements Sec. 319.56-10 Importation of fruits and vegetables from Canada. Sec. 319.56-11 Importation of dried, cured, or processed fruits, vegetables, nuts, and legumes. Sec. 319.56-12 Importation of frozen fruits and vegetables. Sec. 319.56-13 Additional requirements for certain fruits and vegetables. Sec. Sec. 319.56-14 through 319.56-19 [Reserved] Sec. 319.56-20 Apples and pears from Australia (including Tasmania) and New Zealand. Sec. 319.56-21 Okra from certain countries. Sec. 319.56-22 Apples and pears from certain countries in Europe. Sec. 319.56-23 Apricots, nectarines, peaches, plumcot, and plums from Chile. Sec. 319.56-24 Lettuce and peppers from Israel. Sec. 319.56-25 Papayas from Central America and Brazil. Sec. 319.56-26 Melon and watermelon from certain countries in South America. Sec. 319.56-27 Fuji variety apples from Japan and the Republic of Korea. Sec. 319.56-28 Tomatoes from certain countries. Sec. 319.56-29 Ya variety pears from China. Sec. 319.56-30 Hass avocados from Michoacan, Mexico. Sec. 319.56-31 Peppers from Spain. Sec. 319.56-32 Peppers from New Zealand. Sec. 319.56-33 Mangoes from the Philippines. Sec. 319.56-34 Clementines from Spain. Sec. 319.56-35 Persimmons from the Republic of Korea. Sec. 319.56-36 Watermelon, squash, cucumber, and oriental melon from the Republic of Korea. Sec. 319.56-37 Grapes from the Republic of Korea. Sec. 319.56-38 Clementines, mandarins, and tangerines from Chile. Sec. 319.56-39 Fragrant pears from China. Sec. 319.56-40 Peppers from certain Central American countries. Relocation of Treatment Schedules and Other Treatment-related Provisions to Part 305 APHIS recently amended the regulations in 7 CFR part 305 by listing in that part treatment schedules for imported fruits and vegetables and other requirements for certifying facilities and conducting treatments (see 70 FR 33264-33326, Docket No. 02-019-1). Prior to that amendment, treatment schedules were contained in the Plant Protection and Quarantine (PPQ) Treatment Manual, which was incorporated by reference into the regulations at 7 CFR 300.1. The fruits and vegetables regulations also contain some treatment schedules for certain imported fruits and vegetables. In some cases, the schedules are the same as treatments now listed in part 305. In other cases, the schedules are somewhat different than the treatments specified in part 305. The discrepancies resulted from changes being made in the past to the PPQ Treatment Manual without corresponding changes being made to the fruits and vegetables regulations. In this document, we are proposing to remove treatment schedules from the fruits and vegetables regulations, as all current treatments for fruits and vegetables are correctly set out in part 305.\3\ --------------------------------------------------------------------------- \3\ The methyl bromide treatment schedule for cherimoyas from Chile that is listed in current Sec. 319.56-2z is not longer in use, and would be removed. --------------------------------------------------------------------------- The table below contains a list of treatment schedules currently contained in the fruits and vegetables regulations, as well as the identification number of appropriate treatment schedule for the given commodity that is currently listed in part 305. Again, under this proposal, all treatment schedules contained in the fruits and vegetables regulations would be removed, and treatment of affected commodities would have to be conducted in accordance with part 305. -------------------------------------------------------------------------------------------------------------------------------------------------------- Location of treatment in Applicable Commodity Origin Pests Treatment type subpart--fruits and treatment in part vegetables 305 -------------------------------------------------------------------------------------------------------------------------------------------------------- Acorns and chestnuts............ All except Canada and Curculio elephas Methyl bromide 319.56-2b(a)(3)(i) and T-101-t-1. Mexico. (Cyllenhal) and C. normal atmospheric 319.56-2b(a)(3)(iii). nucum Linnaeus; the nut pressure (NAP). fruit tortrix, et al., Cydia splendana (Hubner), Cydia spp., and Hemimene juliana (Curtis); and other insect pests of chestnuts and acorns. Acorns and chestnuts............ All except Canada and Same as above........... Methyl bromide 319.56-2b(a)(3)(ii)..... T-101-u-1. Mexico. (26'' vacuum). Yams............................ All (except Japan)...... Internal and external Methy bromide (NAP) 319.56-21-(a)(2)........ T-101-f-3. feeders. Avocados........................ Medfly-, melon fly-, and Medfly, melon fly Methyl bromide 319.56-2o............... T-108-a. Oriental fruit fly- (Batcrocera (NAP) and cold infested areas. cucurbitae), Oriental treatment. fruit fly (b. dorsalis). Okra............................ Mexico, West Indies, Pink bollworm Methyl bromide 319.56-2p(b)(3)......... T-101-p-2. South America. (Pectinophora (NAP). gossypiella). [[Page 25013]] Cherimoya....................... Chile................... Chilean false spider Methyl bromide 319.56-2z(a)(1)......... Methyl bromide: N/ mite of grapes. (NAP), soapy water A; soapy water and and wax. wax: T-102-b. Mangoes......................... Philippines............. Bactrocera spp. fruit Vapor heat......... 319.56-2ii(b)........... T-106-d-1. flies. -------------------------------------------------------------------------------------------------------------------------------------------------------- Also, under Sec. 319.56-2(k) of the current regulations, treatment by irradiation in accordance with part 305 may be substituted for other treatments in part 305 for one or more of the plant pests listed in Sec. 305.31(a). Since the proposed regulations would provide that certain commodities be treated in accordance with an approved treatment listed in part 305 of the regulations, we are proposing to remove the provisions in Sec. 319.56-2(k) regarding the use of irradiation, as the use of that treatment is covered under part 305. Further, current Sec. 319.56-2n provides that fumigation with methyl bromide at normal atmospheric pressure followed by refrigerated storage in accordance with part 305 is an approved treatment for the Medfly, the oriental fruit fly, and the grape vine moth, and for certain pests of grapes and other fruit from Chile. Since all provisions contained in current Sec. 319.56-2n would remain in force under other sections in the revised regulations (as described in the cross reference document), current Sec. 319.56-2n is redundant and would be removed. In addition to proposing to remove treatment schedules, we are also proposing to move to part 305 other provisions of the fruits and vegetables regulations that pertain to treatments. Specifically, we are proposing to move to Sec. 305.15 the provisions contained in current Sec. 319.56-2d, which pertain to the importation of cold treated fruits and vegetables. Current Sec. 305.15 already contains requirements related to the cold treatment of fruits and vegetables. Any provisions contained in current Sec. 319.56-2d that are not already present in Sec. 305.15 would be moved into Sec. 305.15. The cross reference document shows where the current provisions in Sec. 319.56-2d would be located in proposed Sec. 305.15. Many sections of the fruits and vegetables regulations require treatments to be monitored by an inspector (as defined in current Sec. 319.56-1). We are proposing to remove these provisions from the fruits and vegetables regulations, and consolidate them into one new section in part 305. Under this proposal, the regulations in a new Sec. 305.3, ``Monitoring and certification of treatments,'' would require that all treatments approved under part 305 be subject to monitoring and verification by APHIS. This change would not represent a change in program operations. Further, we would add provisions to Sec. 305.3 to make clear the existing requirement that any approved treatment listed in part 305 that is performed outside the United States must be monitored and certified by APHIS or an official from the plant protection service of the exporting country. We would also clarify the current requirement that all consignments of agricultural commodities that are treated outside the United States to be accompanied by a phytosanitary certificate issued by an official of the plant protection service of the exporting country certifying that treatment was applied in accordance with APHIS regulations. We would require that the phytosanitary certificate be provided to APHIS when the commodity is offered for entry into the United States. We would also require that the commodities must be stored and handled during the entire interval between treatment and export in a manner that prevents any infestation by plant pests and noxious weeds. These changes are necessary to ensure commodities are treated in accordance with APHIS requirements and to help ensure that they arrive in the United States free of quarantine pests. Section-by-Section Discussion of Additional Amendments Additional proposed amendments to the regulations are discussed below, by proposed section. Notice of Quarantine (Proposed Sec. 319.56-1) Current Sec. 319.56, also titled ``Notice of quarantine,'' prohibits the importation of fruits and vegetables except as specifically provided in the fruits and vegetables regulations or in regulations elsewhere in part 319. Proposed Sec. 319.56-1 would replace existing Sec. 319.56, and would describe the authority the Secretary of Agriculture has to regulate the importation of fruits and vegetables.\4\ Proposed Sec. 319.56-1 would also continue to prohibit the importation of fruits and vegetables into the United States, except as provided in the fruits and vegetables regulations or elsewhere in part 319. --------------------------------------------------------------------------- \4\ The Secretary of Agriculture has delegated authority for the formulation, direction, and supervision of APHIS policies, programs, and activities to the Administrator of APHIS. --------------------------------------------------------------------------- Definitions (Proposed Sec. 319.56-2) The current list of definitions for terms used in the regulations is contained in Sec. 319.56-1. Under this proposal, the list would be moved to Sec. 319.56-2. We are proposing to remove, revise, and relocate definitions for several terms currently defined in Sec. 319.56-1 and elsewhere in the regulations, as well as to add several new definitions. All the new and revised definitions may be found in Sec. 319.56-2 in the rule portion of this document. Specifically, we are proposing to add definitions for commodity, consignment, lot, national plant protection organization, phytosanitary certificate, and phytosanitary measure. These additional definitions, which will clarify the meaning of terms used in context of the revised regulations, can be viewed in the rule portion of this document. We are proposing to remove definitions for general written permit and specific written permit. Those definitions would be removed because the distinction between the two would no longer apply under the proposed regulations in Sec. 319.56-3(b). See the discussion of permits under Sec. 319.56-3 later in this document for additional explanation. We are proposing to replace the current definitions for commercial shipment with a definition for commercial consignment in order to eliminate confusion over what constitutes a ``shipment'' at the port of entry into the United States. We would also add a definition for the term noncommercial consignment. Since the term consignment has been defined in the context of international trade [[Page 25014]] agreements, we would use that term in the regulations. We are also proposing to move the definition for West Indies found in Sec. 319.56-2p of the current regulations into proposed Sec. 319.56-2. General Requirements for All Imported Fruits and Vegetables (Proposed Sec. 319.56-3) As explained earlier in this document, we are proposing to consolidate all existing general requirements for imported fruits and vegetables into Sec. 319.56-3. These requirements include provisions that pertain to: Freedom of imported fruits and vegetables from plant debris; Permits; Ports of entry; Inspection, treatment, and/or other requirements at the port of first arrival; Costs and charges for APHIS services; and Responsibility for damages arising from quarantine actions or procedures. The current provisions for these requirements are contained in Sec. Sec. 319.56-2 and 319.56-3 through 319.56-8. We propose to amend the current general requirements as follows: Freedom From Plant Debris Under current Sec. 319.56-2(a), imported fruits and vegetables must be free from plant debris, as that term is defined in the regulations. This provision would remain unchanged under this proposal and would be relocated in proposed Sec. 319.56-3. Permits Current Sec. 319.56-3 states that, except for fruits or vegetables that may be imported under the general written permit provided in Sec. 319.56-2(b), (c), and (d), or for fruits and vegetables imported under an oral permit in accordance with Sec. 319.56-3(d), no fruits or vegetables may be imported unless a specific written permit has been issued for the fruits or vegetables and unless the fruits or vegetables meet all other applicable requirements of the regulations and any other requirements specified by APHIS in the specific written permit. We believe the distinction between specific and general written permits is unnecessarily confusing, since general written permits simply authorize, in the text of the regulations, the importation of the following commodities without a specific written permit: Certain dried, cured, or processed fruits and vegetables (except frozen fruits and vegetables); Certain fruits and vegetables grown in Canada; and Certain fruits and vegetables grown in the British Virgin Islands that are imported into the U.S. Virgin Islands. Therefore, we are proposing to amend the regulations pertaining to permits to state that the commodities described above may be imported without a permit, while all other fruits and vegetables must be imported under permit, in accordance with proposed Sec. 319.56-3(b). The current provisions for importations under oral permits would still apply under proposed Sec. 319.56-3(b)(4). Other current provisions regarding application for permits; issuance of permits; amendment, denial, or withdrawal of permits; and appeals (contained in current Sec. Sec. 319.56-3 and 319.56-4) would be relocated in paragraphs (b)(2), (b)(3), (b)(5), and (b)(6) of proposed Sec. 319.56-3. The provisions for applying for permits would also be updated to reflect the various means (mail, fax, Internet) now available for applying for permits. In this document, we are also proposing to add new provisions to the regulations that would authorize APHIS to issue special use permits that authorize the importation of small lots of fruits or vegetables that are otherwise prohibited importation under the regulations, provided that the fruits or vegetables: Are not intended for commercial distribution; Are to be imported, transported, stored, or held under specific conditions that the Administrator has determined will mitigate the pest risk posed by the imported fruits or vegetables to the extent practicable; and Are to be consumed, disposed of, destroyed, or re-exported at a time and in a manner and place ordered by an inspector or as specified in the permit. These provisions would be contained in proposed Sec. 319.56- 3(b)(7), and would provide for the importation of fruits and vegetables for special events such as trade shows, for diplomatic presentations, and for scientific research. In each case, such imports would only be allowed under strict conditions approved by the Administrator to address the particular risk posed by the particular imported fruit or vegetable. Ports of Entry Some of the current commodity-specific sections of the regulations specify the ports of entry into which particular commodities may be imported. We propose to remove those provisions and combine them into one general provision, to be contained in proposed Sec. 319.56-3(c). Proposed Sec. 319.56-3(c) would provide that ports of entry include only those listed in the regulations of the Department of Homeland Security's Bureau of Customs and Border Protection (CBP) in 19 CFR 101.3(b)(1), and that fruits and vegetables will be required to be imported through specific ports only if so required under Subpart-- Fruits and Vegetables or part 305, or if so required under the conditions of a permit issued for the importation of the particular fruit or vegetable. This section would also make it clear that fruits and vegetables that are to be treated for exotic fruit flies at ports in the United States may only be imported into certain ports, as provided in proposed Sec. 305.15. Provisions for these requirements are contained in Sec. 319.56-2d of the current regulations. Inspection, Treatment, and Other Requirements Requirements currently contained in current Sec. 319.56-6 pertaining to the arrival of fruits and vegetables at ports of entry, inspection and treatment of such fruits and vegetables, notice of actions ordered by an inspector, refusal of entry, and release for movement would be relocated in proposed Sec. 319.56-3(d). The current provisions in Sec. 319.56-5 overlap with the provisions of Sec. 319.56-6 and other sections, and would be removed. Current Sec. 319.56-7 authorizes inspectors to cooperate with Customs inspectors in the examination of all baggage or other personal belongings of passengers or members of crews of vessels or other carriers whenever such examination is deemed necessary for the purpose of enforcing the regulations with respect to the entry of any prohibited or restricted fruits or vegetables or plants or portions of plants which may be contained in the baggage or other belongings of such persons. This provision is no longer essential for the purposes of enforcing the proposed regulations given the consolidation of APHIS and Customs inspection personnel in CBP, and as such, would be removed. Costs and Charges for APHIS Services Current Sec. 319.56-6 provides that APHIS will be responsible only for the costs of providing the services of an inspector during regularly assigned hours of duty and at the usual places of duty, and that the owner of imported fruits or vegetables is responsible for all additional costs of inspection, treatment, movement, storage, or destruction ordered by an inspector under the regulations, including any labor, chemicals, packing materials, or [[Page 25015]] other supplies required. Similar provisions regarding costs and charges are contained in commodity-specific requirements in Sec. Sec. 319.56- 2a through 319.56-2oo. In this document, we are proposing to consolidate all provisions pertaining to costs and charges for inspection services into proposed Sec. 319.56-3(e). This change would not affect program operations in any way, and would eliminate redundant text from the regulations. Responsibility for Damages Arising From Quarantine Actions or Procedures Some of the commodity-specific sections in Sec. Sec. 319.56-2a through 319.56-2oo provide that USDA assumes no responsibility for any damage to imported fruits or vegetables that results from treatments required under the regulations. In this document, we are proposing to consolidate all provisions pertaining to responsibility for damages into proposed Sec. 319.56-3(f). Again, this change would not affect program operations in any way and would eliminate redundant text from the regulations. Approval of Certain Fruits and Vegetables for Importation (Proposed Sec. 319.56-4) Current Sec. 319.56-2(e) provides that any other fruit or vegetable, except those restricted to certain countries and districts by special quarantine,\5\ other orders, or provisions of the fruits and vegetables regulations \6\ may be imported from any country under a permit issued in accordance with the fruits and vegetables regulations if APHIS, after reviewing evidence presented to it, is satisfied that the fruit or vegetable either: --------------------------------------------------------------------------- \5\ The imporation of citrus fruits into the United States from eastern and southeastern Asia and certain other areas is restricted by Subpart--Citrus Fruit, Sec. 319.28. \6\ Fruits and vegetables from designated countries or localities that are subject to commodity-specific import requirements prescribed in the fruits and vegetables regulations are not subject to the regulations in Sec. 319.56-2(e) unless specified otherwise. Such fruits and vegetables are, however, subject to all other general requirements contained in the fruits and vegetables regulations. --------------------------------------------------------------------------- Is not attached in the country of origin by quarantine pests; Has been treated or is to be treated for all quarantine pests that exist in the country of origin, in accordance with conditions and procedures that may be prescribed by the Administrator; Is imported from a definite area or district in the country of origin that is free from all quarantine pests that attack the fruit or vegetable and its importation is in compliance with the criteria of Sec. 319.56-2(f); or Is imported from a definite area or district of the country of origin that is free from quarantine pests that attack the fruit or vegetable and the criteria of Sec. 319.56-2(f) are met with regard to those quarantine pests, provided that all other quarantine pests that attack the fruit or vegetable in the area or district of the country of origin have been eliminated from the fruit or vegetable by treatment or any other procedures that may be prescribed by the Administrator. In short, the regulations in Sec. 319.56-2(e) provide that APHIS may authorize the importation of a fruit or vegetable by simply issuing a permit once it is satisfied that the criteria in that paragraph have been met; those regulations do not envision that the fruit or vegetable would have to be specifically listed in the regulations in order to be eligible for entry. Until 1987, APHIS used those provisions in that manner, issuing permits to authorize the entry of eligible fruits and vegetables without adding those commodities to the regulations.\7\ --------------------------------------------------------------------------- \7\ A comprehensive list of fruits and vegetables that are approved for importation, including those authorized importation under the provisions of Sec. 319.56-2(e) but that are not specifically listed in the regulations, may be found in the APHIS's manual ``Regulating the Importation of Fruits and Vegetables.'' The manual is posted on the Internet at http://www.aphis.usda.gov/ppq/manuals/port/FV_Chapters.htm. --------------------------------------------------------------------------- However, in 1987, in order to increase the transparency of our decisionmaking with respect to the importation of fruits and vegetables, we elected to begin listing all newly approved fruits and vegetables in the regulations through notice-and-comment rulemaking.\8\ This approach has afforded the public the opportunity to comment on the proposed importation of hundreds of commodities over the years. However, the number of requests we receive from foreign exporters and domestic importers to amend the regulations has been steadily increasing since 1987, and we have concluded that a different approach will be necessary if we are to keep pace with the volume of import requests. We believe this new approach, which is described in detail below, will enable us to be more responsive to the import requests of our trading partners while preserving the transparency afforded by the approach we initiated in 1987. --------------------------------------------------------------------------- \8\ The first rule issued under this policy was finalized on November 19, 1992 (see 57 FR 54485-54492, Docket No. 88-143-2). --------------------------------------------------------------------------- Using our current process, in order for an additional fruit or vegetable to be approved for importation, APHIS, after receiving the import request, first gathers information on the commodity and then performs a pest risk analysis. The pest risk analysis usually contains two main components: (1) A risk assessment, to determine what pests of quarantine significance are associated with the proposed import and which of those are likely to follow the import pathway, and (2) a risk management analysis, to identify phytosanitary measures that could be applied to the proposed import and evaluate the potential effectiveness of those measures. When the risk analysis is complete, APHIS may then propose to allow the importation of the commodity through a proposed rule published in the Federal Register. Following its evaluation of public comments on the proposal and any other supporting documentation, APHIS may then issue a final rule that specifically lists the fruit or vegetable, and any applicable phytosanitary measures, in the regulations. The results of a pest risk analysis may also reveal that the risks posed by a proposed import cannot be sufficiently mitigated for a variety of reasons, and such imports continue to be prohibited importation into the United States. The current process for approving new imports takes a significant period of time, ranging on average from 18 months to over 3 years (beginning with the initial request and ending with the publication of a final rule). In this document, we are proposing to establish a regulatory approach that would allow APHIS to approve or reject certain fruits and vegetables for importation without specific prior rulemaking (as was the case prior to 1987), but in a manner that (unlike our process prior to 1987) would provide for public review and comment on the scientific documentation on which such decisions would be based. The process, which would be codified in proposed Sec. 319.56-4 (see the rule portion of this document), would require the publication of notices in the Federal Register to advise the public of the findings of pest risk analyses, and would invite comment on those analyses prior to authorizing any imports. We believe the proposed process would measurably speed up the evaluation and approval or denial of a large number of requests to import additional fruits and vegetables, while continuing to provide opportunity for public analysis of and comment on the science associated with such imports. This proposed process for approving imports would apply only to commodities that, based on the findings of risk analysis, we determine can be safely imported subject to one or more of the following phytosanitary measures, which are referred to [[Page 25016]] elsewhere in this document as designated measures: Inspection upon arrival in the United States and subject to other general requirements of proposed Sec. 319.56-3; and Certified origin from a pest-free area in the country of origin in accordance with revised Sec. 319.56-5; and/or Treatment for pest(s) in accordance with part 305; and/or Inspection and certification that commodity is pest free in the country of origin by the national plant protection organization (NPPO) of the exporting country. The importation of fruits and vegetables that require additional phytosanitary measures beyond one or more of the designated measures cited above would continue to require specific prior rulemaking. For ease of discussion in this document, we refer to the proposed streamlined process as the ``notice-based process'' and the existing process as the ``rulemaking-based process.'' A flowchart to describe the process for considering and evaluating commodity import requests under the proposed regulations is shown as figure 1. Note that the determination as to which process to follow (rulemaking or the notice- based process) would be based exclusively on the conclusions of risk analysis. BILLING CODE 3410-34-P [[Page 25017]] [GRAPHIC] [TIFF OMITTED] TP27AP06.041 BILLING CODE 3410-34-C [[Page 25018]] Using the proposed process, when APHIS receives a request from an NPPO \9\ to allow importation of an additional commodity, it would gather information on the commodity and conduct a pest risk assessment.\10\ When the assessment is complete, if quarantine pests are associated with the commodity in the country or other region of origin \11\, we would evaluate whether the risk posed by each quarantine pest can be mitigated by one or more of the designated measures cited previously in this document.\12\ If the designated measures alone are not sufficient to mitigate the risk posed by the import--i.e., if additional risk mitigation is required beyond one or more of the designated phytosanitary measures--any further action on approving the commodity for importation would be undertaken using the rulemaking-based process for evaluating new imports. However, if APHIS determines in a risk management analysis that the risk posed by each identified quarantine pest associated with the fruit or vegetable in the country or other region of origin can be mitigated by one or more of the designated measures, our findings would be communicated using the notice-based process; APHIS would publish in the Federal Register, for a minimum of 60 days public comment, a notice announcing the availability of the pest risk analysis. Each pest risk analysis made available for public comment will specify which of the designated phytosanitary measures would be required to be applied by APHIS. --------------------------------------------------------------------------- \9\ All requests to allow the importation of a currently prohibited fruit or vegetable into the United States must be submitted by the NPPO of the exporting country to be considered by APHIS. \10\ On October 28, 2004, we published in the Federal Register (69 FR 62823-62829, Docket No. 02-132-1) a proposal to amend the regulations by establishing regulations governing the submission of requests to change the part 319 import regulations. The proposed regulations were designed to help ensure that foreign NPPOs provide us with the information we need to prepare a risk analysis and/or other analyses that evaluate the risks and other effects associated with a proposed change to the regulations. Final action on that proposal is pending. \11\ Risk analyses could consider a country, part of a country, or all or parts of several countries. \12\ If no quarantine pests are identified in the PRA as likely to follow the pathway, a detailed risk management analysis would likely not be performed, but the importation of the commodity would still be subject to the general requirements of proposed Sec. 319.56-3. --------------------------------------------------------------------------- The following is a selection of commodities that have been approved for importation by APHIS since 2002. Had the proposed regulations been in place since that time, commodities in the left column would have been evaluated for approval using the notice-based process, while commodities in the right column would have been evaluated for approval via rulemaking. Note that this list is not comprehensive; not all recently approved commodities are listed. ------------------------------------------------------------------------ Notice-based process candidates Rulemaking required ------------------------------------------------------------------------ Blueberries from South America (70 FR Peppers from Central America 16431). (71 FR 11288). Peppers from Chile (67 FR 61547)....... Fragrant Pears from China (70 FR 76133). Basil from Honduras (67 FR 61547)...... Papayas from Brazil and Central America (70 FR 16431). Longans from China (67 FR 61547)....... Citrus from Chile (69 FR 71691). Persimmon from Spain (67 FR 61547)..... Hass avocados from Mexico (69 FR 69748). Fig from Mexico (67 FR 61547).......... Grapes from the Republic of Korea (68 FR 70448). Citrus from Australia (67 FR 61547).... Clementines from Spain (67 FR 64702). ------------------------------------------------------------------------ Under the streamlined process, APHIS would evaluate comments received in response to our notice of availability of the risk analysis. In the event that we receive no comments, or in the event that commenters do not provide APHIS with analysis or data to reveal that the conclusions of the pest risk analysis are incorrect and that changes to the pest risk analysis are necessary, APHIS would then publish another notice in the Federal Register announcing that the Administrator has determined that, based on the information available, the application of one or more of the designated measures described above (and as specified in a given pest risk analysis) is sufficient to mitigate the risk that plant pests or noxious weeds could be introduced into or disseminated within the United States via the imported fruit or vegetable. APHIS would begin issuing import permits for the particular commodity, subject to the conditions described in the pest risk analysis, beginning on the date the Federal Register notice is published. In the event that commenters provide APHIS with analysis or data that reveals that changes to the pest risk analysis are necessary, and if the changes made affect the conclusions of the analysis (i.e., that inspection and origin from a pest-free area and/or treatment are not sufficient to mitigate the risk posed by the identified pests), APHIS would proceed as follows: If additional phytosanitary measures beyond the designated measures described earlier in this document are determined to be necessary to mitigate the risk posed by the particular imported fruit or vegetable to the extent practicable, as determined by the Administrator, any further action on the commodity would follow the rulemaking-based process. If additional risk mitigation beyond the measures evaluated in the pest risk analysis is determined to be required, but the measures still only include one or more of the designated measures described earlier in this document, APHIS may publish another notice announcing that the Administrator has determined that, based on the information available, the application of one or more of the designated measures described earlier in this document is sufficient to mitigate the risk that plant pests or noxious weeds could be introduced into or disseminated within the United States via the imported fruit or vegetable. APHIS would begin issuing import permits for the particular commodity, subject to the conditions described in the revised pest risk analysis, beginning on the date specified in the Federal Register notice. Alternately, if APHIS believes that the revisions to the pest risk analysis are substantial, and that there may be continued uncertainty as to whether the designated measures are sufficient to mitigate the risk posed by the fruit or vegetable, APHIS may elect to make the revised risk analysis available for public comment via a notice in the Federal Register, or may make any further action on approving the commodity for importation subject to rulemaking. Note that APHIS does not set policy or regulatory requirements based on issues of economic competitiveness; our authority is tied to risk, and therefore our decisionmaking is based on an analysis of risk. While the proposed process would not preclude the submission of comments regarding [[Page 25019]] issues unrelated to risk, comments on issues such as economic competitiveness (e.g., comments that the proposed import would result in decreased sales for domestic producers of the same commodity) would not merit a detailed response by APHIS. This proposal would allow APHIS to focus public discussion on the analysis of pest risk, which is the primary basis for our decisionmaking. We believe this policy is consistent with the provisions of the Plant Protection Act, as well as international trade agreements. The notice-based process would employ the use of Federal Register notices to communicate APHIS's consideration and approval or denial of requests that were previously only approved via rulemaking. As described above, Federal Register notices would be used to announce the availability of pest risk analyses for public comment. Federal Register notices would also be used to announce when the Administrator has determined that a particular commodity that has been subject to risk analysis and public comment can, based on the findings of pest risk analysis, be approved for importation into the United States. These notices would make clear the conditions under which such importations could occur (i.e., subject to inspection, and, if necessary, origin from a pest-free area and/or treatment), and would state that APHIS will immediately begin issuing permits for the importation of the commodity. As described later in this document, these notices would also be used to make available any documentation of our consideration of the potential effects of the new imports on the environment, as required under the National Environmental Policy Act, as well as any other analyses determined by APHIS to be necessary under other Federal Statutes, such as the Endangered Species Act. If the notice-based process is adopted for use by APHIS, we would not list commodities approved under this approach in the regulations, though such commodities would be listed in APHIS's fruits and vegetables manual and the documentation supporting their approval would be made available on the Internet; we also would remove from the regulations those listed commodities that are currently approved for importation subject to one or more of the designated measures described earlier in this document. Consequently, the lists of commodities contained in current Sec. Sec. 319.56-2t and 319.56-2x would be removed, as would a number of other provisions in current commodity- specific sections in the regulations that authorize importation of specific fruits or vegetables in accordance with one or more of the designated measures.\13\ The following current sections would be removed for this reason: --------------------------------------------------------------------------- \13\ Some commodities listed in Sec. Sec. 319.56-2g, 319.56-2t, and 319.56-2x are allowed importation subject to additional measures beyond the designated measures described earlier in this document. Those commodities would be required to be imported in accordance with proposed Sec. 319.56-13, and would remain subject to the same restrictions as currently apply to their importation. Commodities that require such additional measures (e.g., box marking or specified stages of ripeness) would continue to be authorized importation through specific rulemaking. Sec. 319.56-2e, ``Administrative instructions; conditions governing the entry of cipollini from Morocco;'' Sec. 319.56-2g, ``Administrative instructions prescribing method of treatment of garlic from specified countries;'' Sec. 319.56-2h, ``Regulations governing the entry of grapes from Australia;'' Sec. 319.56-2i, ``Administrative instructions prescribing treatments for mangoes from Central America, South America, and the West Indies;'' Sec. 319.56-2k, ``Administrative instructions prescribing method of fumigation of field-grown grapes from specified countries;'' Sec. 319.56-2l, ``Administrative instructions prescribing method of treatment of imported yams;'' Sec. 319.56-2m, ``Administrative instructions prescribing method of fumigation of apricots, grapes, nectarines, peaches, plumcot, and plums from Chile;'' Sec. 319.56-2n, ``Administrative instructions prescribing a combination treatment of fumigation plus refrigeration for certain fruits;'' Sec. 319.56-2o, ``Administrative instructions prescribing method of treatment of avocados for the Mediterranean fruit fly, the melon fly, and the Oriental fruit fly;'' Sec. 319.56-2q, ``Administrative instructions: Conditions governing the entry of citrus from South Africa;'' Sec. 319.56-2v, ``Conditions governing the entry of citrus from Australia;'' and Sec. 319.56-2z, ``Administrative instructions governing the entry of cherimoyas from Chile.'' Additionally, paragraphs (b) and (c) of Sec. 319.56-2y (pertaining to the importation of cantaloupe, honeydew melons, and watermelon from Brazil and Venezuela) would also be removed for the same reason. As explained earlier in this document, the same restrictions that currently apply under the sections listed above would continue to apply. We recognize that removing a large number of commodities from the regulations may cause some confusion as to whether a particular commodity is approved for importation into the United States, and under what conditions. However, for many years, APHIS has maintained a fruits and vegetables manual that was designed to be a hands-on reference for our inspectors. The manual is a complete reference for all approved fruit and vegetable imports: In addition to mirroring or referencing requirements for all commodities whose importation is authorized under the regulations, the manual contains listings and requirements for fruits and vegetables that had been authorized importation prior to September 30, 1987, and that continue to be allowed importation under permit and subject to the same conditions that were applied prior to that date, but that are not specifically listed in the regulations. The manual is available for viewing on the APHIS Web site at http://www.aphis.usda.gov/ppq/manuals/port/FV_Chapters.htm, and is frequently used by importers and other interested persons, in addition to APHIS personnel. Under this proposal, commodities that meet the requirements in proposed Sec. 319.56-4 would be added to the manual, but not the regulations. Furthermore, the manual will list which of the designated measures apply to such commodities. Note that before we would publish any final rule amending the regulations as described in this document, APHIS intends to revise the manual to simplify it and make it easier to use. We are in early stages of converting the manual into a searchable database that will allow interested persons to search by commodity or by country, and that will list clearly the conditions that apply to each particular commodity from a specified country. A searchable database is already available at: https://manuals.cphst.org/q56/Q56Main.cfm, but we are planning to replace it with one that is easier to use and understand. We envision the revised manual as a comprehensive source for all types of users: inspectors, importers, and other members of the public. We would also include in proposed Sec. 319.56-4 provisions that would allow APHIS to amend import requirements or withdraw approval of particular commodities whose importation is approved under Sec. 319.56-4. Specifically, APHIS could amend import requirements if we determine that the designated phytosanitary measures are not sufficient to mitigate the risk posed by the particular fruit or vegetable. This could occur due to interceptions of new pests in imported fruits or vegetables or the discovery of types of new evidence of risk. Under this provision, APHIS could prohibit or further restrict importation of the [[Page 25020]] particular fruit or vegetable by publishing a notice in the Federal Register advising the public of its finding. In such cases, APHIS would take immediate action as appropriate at ports of entry, and would follow such action as quickly as practicable with notice in the Federal Register. The notice would specify the amended import requirements, provide an effective date for the change, and would invite public comment on the subject. It is likely that most such actions would be effective immediately, in order to address newly identified risks in timely fashion; however, if there is uncertainty as to the risk posed, APHIS may request comment on a change in import conditions prior to making such a change effective. We would also encourage parties interested in being informed of changes to our import policies, such as those proposed in this rule, to register for APHIS''s stakeholder registry at https://web01.aphis.usda.gov/PPQStakeWeb2.nsf. Persons who register and who select ``plant imports'' and ``fruits and vegetables'' as topics of interest would be notified when changes to our fruit and vegetable import policies are made, including when we make import risk analyses available for comment or approve new imports using the proposed process. Commercial Shipments Often, pest risk analyses for the importation of new commodities consider only the risks posed by commercially produced and shipped fruit; non-commercial shipments may pose an entirely different pest risk than commercial shipments. Currently, and as indicated elsewhere in this document (see proposed Sec. 319.56-13), many fruits and vegetables may only be imported in commercial shipments for that reason. We are inviting comment on whether we should add ``commercial shipments only'' as a fifth designated measure under the proposed regulations in Sec. 319.56-4. Pest-Free Areas (Proposed Sec. 319.56-5) Current Sec. 319.56-2(e) establishes area freedom from pests as a phytosanitary measure for the purposes of the fruits and vegetables regulations. Under Sec. 319.56-2(e), fruits and vegetables (except those for which there are commodity-specific provisions in the fruits and vegetables regulations or elsewhere in part 319) may be imported under a permit and upon compliance with the regulations, if APHIS is satisfied that the fruit or vegetable either: Is not attacked in the country of origin by quarantine pests; Is imported from a definite area or district in the country of origin that is free from all quarantine pests that attack the fruit or vegetable, and the area or district meets APHIS requirements in Sec. 319.56-2(f) for pest freedom; or Is imported from a definite area or district of the country of origin that is free from quarantine pests that attack the fruit or vegetable, and the area or district meets APHIS requirements in Sec. 319.56-2(f) for pest freedom, provided that all other quarantine pests that attack the fruit or vegetable in the area or district of the country of origin have been eliminated from the fruit or vegetable by treatment or any other procedures that may be prescribed by the Administrator. Currently, APHIS-approved pest-free areas in foreign countries are listed in Sec. 319.56-2 (h) and (j) and in various commodity-specific sections of the fruits and vegetables regulations (e.g., Sec. Sec. 319.56-2q, 319.56-2v, 319.56-2y, 319.56-2ii). A comprehensive list of pest-free areas that currently meet APHIS standards may be viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov.). APHIS currently recognizes changes in the pest-free status of countries via rulemaking. For example, if an area within a country where fruit flies are known to exist is determined to be free of fruit flies, in order for a fruit or vegetable that is a fruit fly host to be imported from that area without treatment or other mitigation for fruit flies, APHIS lists the specific area in the regulations as a fruit fly- free area. If changes in the pest-free status of such areas occur, APHIS again revises the regulations to recognize the change. Given the time it takes to propose a change to the regulations, accept comments on the proposal, and publish a final rule amending the regulations, the regulations often do not reflect the actual status of a particular area. In this document, we are proposing to establish criteria within the egulations that, if met, would allow APHIS to be more responsive in recognizing changes in the pest-free status of foreign areas. Under proposed Sec. 319.56-5, when APHIS is provided with evidence that the pest-free status of a foreign area has changed, we will publish in the Federal Register a notice announcing the change in status and take public comments on the notice for 60 days. The notice would make available copies of the information showing that the area in question meets the following criteria (which are the same criteria provided in the current regulations): (1) APHIS made a determination that the area is free of specified pest(s) in accordance with the criteria for establishing freedom from pests found in International Standard for Phytosanitary Measures No. 4, ``Requirements for the establishment of pest free areas.'' (The international standard was established by the International Plant Protection Convention of the United Nations' Food and Agriculture Organization and is incorporated by reference at 7 CFR 300.5.) (2) APHIS has approved the survey protocol used to determine and maintain pest-free status, as well as protocols for actions to be performed upon detection of a pest. (Pest-free areas are subject to audit by APHIS to verify their status.) If public comments submitted to APHIS provide evidence that our determination of pest-freedom is incorrect, APHIS would announce in a subsequent Federal Register notice that the status of the area in question has changed. A comprehensive list of pest-free areas would continue to be made available by APHIS on the Internet, but no such list would be contained in the regulations. Rather, the regulations would simply identify the standards an area must meet to be considered pest free, as shown in proposed Sec. 319.56-5. In conjunction with this proposed change, we would also include a provision in proposed Sec. 319.56-5 regarding how we would acknowledge the decertification of pest-free areas. In the event of pest infestation in an approved pest-free area, APHIS would publish in the Federal Register a notice announcing that the pest-free status of the area in question has been withdrawn, and that imports of host crops for the pest in question are subject to application of an approved treatment. If a treatment for the pest is not available, the imports would be prohibited importation. In order for a decertified pest-free area to be reinstated, it would have to be approved by APHIS and meet the criteria for establishing freedom from pests found in International Standard for Phytosanitary Measures No. 4, ``Requirements for the establishment of pest free areas.'' In addition to the proposed changes described above, we would consolidate existing restrictions on fruits and vegetables imported from pest-free areas into proposed Sec. 319.56-5, including requirements for labeling of fruits and vegetables. Requirements for labeling [[Page 25021]] are currently contained in Sec. 319.56-2(g). Additionally, we would clarify the existing requirement that the imported fruits and vegetables would have to be accompanied by a phytosanitary certificate bearing an additional declaration that the fruits or vegetables originated in a pest-free area that meets the requirements of Sec. 319.56-5(a) and (b). Also, in conjunction with this change, we would clarify and strengthen the current requirements in Sec. 319.56-2(g) regarding safeguarding of fruits and vegetables that are imported from pest-free areas. We would require fruits or vegetables moved from a pest-free area into or through a non-free area to be safeguarded during the time they are present in a non-free area by insect-proof mesh screens or plastic tarpaulins, including while in transit to the packing house and while awaiting packaging. Further, we would require fruits or vegetables that are moved through a non-free area during transit to a port to be packed in insect-proof cartons or containers or be covered by insect-proof mesh or plastic tarpaulins during transit to the port and subsequent export to the United States. These safeguards would provide necessary protection of imported commodities against pest infestation while they are in transit to the United States and are consistent with standard operating procedures of all current programs for the export of fruits or vegetables from pest-free areas. Trust Fund Agreements (Proposed Sec. 319.56-6) Several of the current commodity-specific regulations contain provisions regarding the establishment of trust funds for the payments of APHIS services that are provided in foreign countries. The language of those provisions is generally consistent from one section to another, and as a result, the regulations contain a great deal of redundant text. To eliminate the redundant text, we propose to simplify the language in each section where it exists, and reference a new general trust fund provision, to be contained in proposed Sec. 319.56- 6. This change is purely editorial in nature and would not affect the operation of any current or future APHIS programs. The following sections of the current regulations contain trust fund agreement stipulations that would be amended under this proposal: Sec. Sec. 319.56-2h, 319.56-2r, 319.56-2s, 319.56-2z, 319.56-2cc, 319.56-2dd, 319.56-2ff, 319.56-2ii, 319.56-2jj, and 319.56-2mm. Territorial Applicability and Exceptions (Proposed Sec. 319.56-7) The regulations in ``Subpart--Fruits and Vegetables'' generally apply to fruits and vegetables imported into any U.S. State, including U.S. territories and possessions. However, the regulations also provide for the importation of certain fruits and vegetables into certain territories and possessions under conditions that differ from the conditions that apply to importations into the rest of the United States. For example, current Sec. 319.56a contains special restrictions that apply to the importation of fruits and vegetables into Guam. Also, Sec. 319.56-2(d) contains restrictions that apply to the importation of fruits and vegetables into the U.S. Virgin Islands from the British Virgin Islands. Additional provisions pertaining to importations of fruits and vegetables into U.S. territories are located in current Sec. Sec. 319.56, 319.56-2, 319.56-2a, and Sec. 319.56-8. We are proposing to simplify the regulations by consolidating all territorial import requirements into one section, proposed Sec. 319.56-7. The requirements pertaining to Guam would be contained in proposed Sec. 319.56-7(b), and requirements pertaining to the U.S. Virgin Islands would be contained in proposed Sec. 319.56-7(c). In conjunction with these changes, we are proposing to amend the existing territorial import requirements to update place names, to reflect changes in political associations, and to update import conditions based on changes in pest prevalence in exporting countries. Specifically, we would remove the provision in current Sec. 319.56-2a(a)(1) regarding imports from the Marianas Islands into Guam. The entire Marianas Island Archipelago, except Guam, is part of the Commonwealth of the Northern Marianas Islands (CNMI), which is under U.S. administration. Any requirements pertaining to movements of fruits and vegetables into Guam from other U.S. States (as defined in proposed Sec. 319.56-2 to include CNMI) should be located in 7 CFR part 318-- Hawaiian and Territorial Quarantine Notices. However, the regulations in part 318 are outdated and do not cover movements of fruits and vegetables from CNMI to the continental United States. The regulations in part 318 require additional amendment; however, the additional amendments are outside the scope of this proposal, which focuses on the revision of the fruits and vegetables regulations. Therefore, we would make no changes to part 318 in this action, but would make the necessary revisions to part 318 in a separate rulemaking. In the meantime, we would continue to administratively enforce restrictions on the movement of fruits and vegetables from CNMI. We would update references to the Caroline Islands in Sec. 319.56a(a)(3) and Netherlands New Guinea in Sec. 319.56a(a)(8). The Caroline Islands are currently known as Palau and the Federated States of Micronesia, and Netherlands New Guinea is currently known as Papua New Guinea. The current regulations in Sec. 319.56a provide that Allium spp. may be imported into Guam without treatment. We are proposing to clarify that only Allium spp. without tops may be imported into Guam, due to the presence of the leaf tip die back disease, Mycosphaerella schoenoprasi, and exotic species of leaf miners of Allium spp. in countries that regularly trade with Guam. Those pests, which are associated with the Allium spp. tops and are not pests of Allium spp. bulbs, are not present in Guam. The restrictions on the importation of Allium spp. tops is necessary to prevent the introduction of Mycosphaerella schoenoprasi and exotic species of leaf miners into Guam. In addition, we would remove the provision in current Sec. 319.56a(d) that prohibits the importation of coconuts with husks into Guam from the Trust Territory (i.e., the former U.N. Trust Territory of the Pacific under U.S. administration, now Palau, the Marshall Islands, the Northern Mariana Islands, and the Federated States of Micronesia). Under proposed Sec. 319.56-7(b)(1)(xi), all fruits and vegetables approved for entry into any other part or port of the United States may be imported into Guam; and coconuts without husks are eligible for importation into all U.S. States under the provisions of proposed Sec. 319.56-4. Coconuts with husks are not approved for importation into the United States under the regulations. We would also remove the provisions in current Sec. 319.56a(e), which state that application of the provisions of current Sec. Sec. 319.56-2d, 319.56-2e, 319.56-2g, 319.56-2k, 319.56-2l, and 319.56-2p is impracticable in the case of traffic into Guam (due to lack of treatment facilities) and therefore such application is withdrawn. Guam now has a treatment facility adequate to treat commodities enterable under the sections cited above, and therefore, current Sec. 319.56a(e) is no longer accurate. We would also remove a provision now in Sec. 319.56(c) that provides that the Administrator may, by permit, authorize importations into Guam under [[Page 25022]] conditions specified in the permit that are less stringent than those contained in ``Subpart--Fruits and Vegetables.'' The proposed special use permit regulations in Sec. 319.56-3(b)(7) would provide an equivalent means for authorizing the importation of fruits and vegetables into Guam as is currently allowed under Sec. 319.56(c). Sections 319.56-8 through 319.56-9 would be reserved to provide additional space in ``Subpart--Fruits and Vegetables'' for future amendments, should such amendments be needed. Importation of Fruits and Vegetables From Canada (Proposed Sec. 319.56-10) Under current Sec. 319.56-2(c), fruits and vegetables grown in Canada (except potatoes from Newfoundland and that portion of the Municipality of Central Saanich in the Province of British Columbia east of the West Saanich Road) may be imported into the United States without further restriction. This provision would remain unchanged under this proposal and would be relocated in proposed Sec. 319.56-10. Importation of Dried, Cured, or Processed Fruits, Vegetables, Nuts, and Legumes (Proposed Sec. 319.56-11) Under current Sec. 319.56-2, dried, cured, or processed fruits, vegetables, nuts, and legumes are allowed importation into the United States without a permit or phytosanitary certificate, unless the regulations specifically provide otherwise. Exceptions are contained in Sec. Sec. 319.56-2a and 319.56-2b. Under the proposed regulations, the provisions regarding importation of coconuts into Guam from the Trust Territory would be removed, and the remaining exceptions would be moved to proposed Sec. 319.56-11, for the same reasons described under the description of proposed Sec. 319.56-7 above. The provisions regarding exceptions would also be reorganized and simplified. Enforceable provisions would remain unchanged, except that we would add a new provision prohibiting the importation of macadamia nuts in the husk or shell from all countries or regions, except from St. Eustatius. This proposed provision is consistent with current APHIS policy on the importation of macadamia nuts and is necessary to protect against the introduction of exotic pests associated with macadamia nuts from foreign countries or regions other than St. Eustatius. Any imports of macadamia nuts in the husk or shell from other countries or regions would be contingent on the findings of pest risk analysis. Importation of Frozen Fruits and Vegetables (Proposed Sec. 319.56-12) Current Sec. 319.56-2c prescribes quick freezing in accordance with part 305 as a satisfactory treatment for all fruits and vegetables enterable under permit under Sec. 319.56. Such frozen fruits and vegetables may be imported from any country under permit, in compliance with Sec. Sec. 319.56-1 through 319.56-7 (exclusive of non-related administrative instructions), at ports authorized in the permits. The regulations also provide that the importation of frozen fruits and vegetables is not authorized when such fruits and vegetables are subject to attack in the area of origin by plant pests that may not, in the judgment of the Administrator, be destroyed by freezing. We are proposing to simplify the text of the requirements for importing frozen fruits and vegetables to provide that frozen fruits and vegetables may be imported into the United States only if they are quick frozen in accordance with part 305. The regulations would also provide that the importation of certain frozen fruits and vegetables is not authorized when the fruits and vegetables are subject to attack in the area of origin by plant pests that may not be destroyed by freezing. These provisions would be located in proposed Sec. 319.56- 12. These changes are not substantive and would not affect existing entry requirements for imported frozen fruits and vegetables. Additional Requirements for Certain Fruits and Vegetables (Proposed Sec. 319.56-13) The majority of fruits and vegetables listed in current Sec. 319.56-2t are allowed importation into the United States subject to inspection and other universal requirements. Similarly, the majority of fruits and vegetables listed in current Sec. 319.56-2x are allowed importation into the United States with treatment, in addition to inspection and other universal requirements. In addition, under Sec. 319.56-2g, garlic may be imported from certain countries with treatment, in addition to inspection and other universal requirements. As explained elsewhere in this document, most such commodities would no longer be listed in the regulations under this proposal. However, as also explained earlier in this document, some commodities listed in current Sec. Sec. 319.56-2g, 319.56-2t and 319.56-2x, as well as some commodities not listed in the regulations but that are allowed importation under permit in accordance with Sec. 319.56-2(e), are allowed importation subject to additional measures beyond inspection and treatment. We are proposing to list those commodities, and any requirements that apply to their importation beyond the general requirements of Sec. 319.56-3, in Sec. 319.56-13. Such commodities would remain subject to the same restrictions that currently apply to their importation. See proposed Sec. 319.56-13 for a list of commodities and applicable requirements. Authorization of additional commodities subject to any of these additional measures or measures other than the designated measures described earlier in this document would continue to require prior specific rulemaking. Sections 319.56-14 through 319.56-19 would be reserved to provide additional space in ``Subpart--Fruits and Vegetables'' for future amendments, should such amendments be needed. Commodity-Specific Provisions (Proposed Sec. Sec. 319.56-20 Through 319.56-40) Sections 319.56-2a through 319.56-2oo contain restrictions on the importation of specific commodities. As explained elsewhere in this document, a number of these sections will be removed if this proposal is adopted. However, all or part of the following sections would be retained under this proposal: Sec. 319.56-2j, ``Conditions governing the entry of apples and pears from Australia (including Tasmania) and New Zealand;'' Sec. 319.56-2p, ``Administrative instructions prescribing treatment and relieving restrictions regarding importation of okra from Mexico, the West Indies, and certain countries in South America;'' Sec. 319.56-2r, ``Administrative instructions governing the entry of apples and pears from certain countries in Europe;'' Sec. 319.56-2s, ``Administrative instructions governing the entry of apricots, nectarines, peaches, plumcot, and plums from Chile;'' Sec. 319.56-2u, ``Conditions governing the entry of lettuce and peppers from Israel;'' Sec. 319.56-2w, ``Administrative instruction; conditions governing the entry of papayas from Central America and Brazil;'' Sec. 319.56-2y, ``Conditions governing the entry of melon and watermelon from certain countries in South America;'' Sec. 319.56-2aa, ``Conditions governing the entry of watermelon, squash, cucumber, and oriental melon from the Republic of Korea;'' Sec. 319.56-2cc, ``Administrative instructions governing the entry of Fuji variety apples from Japan and the Republic of Korea;'' Sec. 319.56-2dd, ``Administrative instructions: conditions governing the entry of tomatoes;'' Sec. 319.56-2ee, ``Administrative instructions: Conditions governing the entry of Ya variety pears from China;'' Sec. 319.56-2ff, ``Administrative instructions governing movement of Hass [[Page 25023]] avocados from Michoacan, Mexico, to approved States;'' Sec. 319.56-2gg, ``Administrative instructions; conditions governing the entry of peppers from Spain;'' Sec. 319.56-2hh, ``Conditions governing the entry of peppers from New Zealand;'' Sec. 319.56-2ii, ``Administrative instructions: conditions governing the entry of mangoes from the Philippines;'' Sec. 319.56-2jj, ``Administrative instructions; conditions governing the importation of clementines from Spain;'' Sec. 319.56-2kk, ``Persimmons from the Republic of Korea.'' Sec. 319.56-2ll, ``Conditions governing the entry of grapes from the Republic of Korea;'' Sec. 319.56-2mm, ``Conditions governing the importation of clementines, mandarins, and tangerines from Chile.'' Sec. 319.56-2nn, ``Administrative instructions: Conditions governing the entry of fragrant pears from China.'' and Sec. 319.56-2oo, ``Administrative instructions: Conditions governing the entry of peppers from certain Central American countries.'' Under this proposal, some or all of the provisions contained in the sections listed above would be relocated to new sections of the proposed regulations, as shown in the cross reference document. In some cases, we would make no revisions to the actual content of the sections, but simply change paragraph and section designations. In other cases, we are proposing to amend the text to make the regulations easier to understand, to correct errors, or to update them to reflect current APHIS operating procedures. None of these changes would represent significant changes in import policy. Proposed changes that are substantive in nature are described first, by section. Non- substantive editorial changes are described next, also by section. Proposed Substantive Revisions Okra From Certain Countries (Proposed Sec. 319.56-21) Current Sec. 319.56-2p contains varying restrictions on the importation of okra from countries where the pink bollworm (Pectinophora gossypiella) is known to exist. The regulations are outdated, and contain differing restrictions for the importation of okra from countries even though the regulations are all aimed at excluding pink bollworm from the United States, and despite the fact that the conditions in the regulations are inconsistent with those enforced by inspectors at ports of entry. Under this proposal, the majority of provisions contained in current Sec. 319.56-2p would be relocated to proposed Sec. 319.56-21, and all imports from pink bollworm-infested areas would be subject to the same requirements. The proposed revisions would bring our okra import regulations up to date with current practice and would make the import provisions equivalent to our domestic regulations that pertain to pink bollworm (7 CFR 301.52 through 301.52-10). Apricots, Nectarines, Peaches, Plumcot, and Plums From Chile (Proposed Sec. 319.56-23) Current Sec. 319.56-2s contains restrictions on the importation of apricots, nectarines, peaches, plumcot, and plums from Chile. Under this proposal, all provisions contained in current Sec. 319.56-2s would be relocated to proposed Sec. 319.56-23, except that the provision in Sec. 319.56-2s(b) pertaining to trust fund agreements would be amended and become part of revised Sec. 319.56-6, as explained earlier in this document. In addition, we would update the provisions in current paragraph (d)(1) to ensure the regulations reflect current APHIS operating practices regarding biometric sampling of fruit. The sampling regimens specified in the current regulations would be removed and replaced with provisions that require sampling, but which do not specify the percentage of fruit to be sampled or the confidence level of the inspection. This change is necessary because sampling levels change depending on the pest dynamics associated with the commodity being imported, and the regulations should be designed to account for appropriate increases or decreases in sampling rates. Tomatoes From Certain Countries (Proposed Sec. 319.56-28) Current Sec. 319.56-2dd contains restrictions on the importation of tomatoes from certain countries. Under this proposal, all provisions contained in current Sec. 319.56-2dd would be relocated to proposed Sec. 319.56-28, except that: (1) The provision in Sec. 319.56- 2dd(d)(3) pertaining to trust fund agreements would be amended and become part of revised Sec. 319.56-6, as explained earlier in this document; and (2) the various provisions pertaining to packing and safeguarding of tomatoes would be amended to require tomatoes to be safeguarded from the time of harvest through export by insect-proof mesh screens or plastic tarpaulins, including while in transit to the packing house and while awaiting packaging. In addition, tomatoes would be required to be packed in insect-proof cartons or containers, or covered by insect-proof mesh or plastic tarpaulins during transit to the airport and subsequent export to the United States. These proposed revisions are necessary to ensure that tomatoes are safeguarded against insect infestation prior to shipment to the United States. The current regulations require packaging and containers to be fruit fly-proof, not insect-proof. Proposed Non-Substantive Revisions Apples and Pears From Australia (Including Tasmania) and New Zealand (Proposed Sec. 319.56-20) Current Sec. 319.56-2j contains restrictions on the importation of apples and pears from Australia (including Tasmania) and New Zealand. Under this proposal, most provisions contained in current Sec. 319.56- 2j would be relocated to proposed Sec. 319.56-20.\14\ This change would not substantively affect the current regulations, but would make them easier to understand. --------------------------------------------------------------------------- \14\ As explained elsewhere in this document, general provisions such as those contained in Sec. 319.56-2j(a)(3) through (a)(6) would be consolidated into provisions of general applicability (universal requirements) in proposed Sec. Sec. 319.56-3 and 305.3. --------------------------------------------------------------------------- Apples and Pears From Certain Countries in Europe (Proposed Sec. 319.56-22) Current Sec. 319.56-2r contains restrictions on the importation of apples and pears from certain countries in Europe. Under this proposal, all provisions contained in current Sec. 319.56-2r would be relocated to proposed Sec. 319.56-22, except that the provision in Sec. 319.56- 2r(b) pertaining to trust fund agreements would be amended and become part of proposed Sec. 319.56-6, as explained earlier in this document. Lettuce and Peppers From Israel (Proposed Sec. 319.56-24) Current Sec. 319.56-2u contains restrictions on the importation of lettuce and peppers from Israel. Under this proposal, all provisions contained in current Sec. 319.56-2u would be relocated to proposed Sec. 319.56-24. Papayas From Central America and Brazil (Proposed Sec. 319.56-25) Current Sec. 319.56-2w contains restrictions on the importation of papayas from Central America and Brazil. Under this proposal, all provisions contained in current Sec. 319.56-2w would be relocated to proposed Sec. 319.56-25. Melon and Watermelon From Certain countries in South America (Proposed Sec. 319.56-26) Current Sec. 319.56-2y contains restrictions on the importation of melon and watermelon from certain countries in South America. Specifically: [[Page 25024]] Paragraph (a) pertains to the importation of cantaloupe and watermelon from Ecuador; Paragraph (b) pertains to the importation of cantaloupe, honeydew melons, and watermelon from Brazil; Paragraph (c) pertains to the importation of cantaloupe, honeydew melons, and watermelon from Venezuela; and Paragraph (d) pertains to the importation of cantaloupe, netted melon, vegetable melon, winter melon, and watermelon from Peru. Under this proposal, all provisions contained in paragraph (a) would be relocated to proposed Sec. 319.56-26. The provisions of paragraphs (b) and (c) would be removed from the regulations because their importation would be authorized under proposed Sec. 319.56-4. The basic provisions of paragraph (d) would be moved to proposed Sec. 319.56-26, except that some provisions regarding origin of the fruit from a pest free area would be covered under proposed Sec. 319.56-5. Fuji Variety Apples From Japan and the Republic of Korea (Proposed Sec. 319.56-27) Current Sec. 319.56-2cc contains restrictions on the importation of Fuji variety apples from Japan and the Republic of Korea. Under this proposal, all provisions contained in current Sec. 319.56-2cc would be relocated to proposed Sec. 319.56-27, except that the provisions in paragraphs (c) and (d) of Sec. 319.56-2cc would be revised or removed as explained earlier in this document under the headings ``Trust Fund Agreements (Proposed Sec. 319.56-6)'' and ``General requirements for all imported fruits and vegetables (Proposed Sec. 319.56-3).'' We would also amend current Sec. 319.56-2cc(a) to remove the reference to the kanzawa mite (Tetranychus kanzawai). This mite is no longer considered a quarantine pest because it exists in the United States, and there is no official control program for it. This change would have no effect on current import conditions, as the treatment required for kanzawa mite would still be required to address the risk posed by other identified pests of apples. Ya Variety Pears From China (Proposed Sec. 319.56-29) Current Sec. 319.56-2ee contains restrictions on the importation of Ya variety pears from China. Under this proposal, all provisions contained in current Sec. 319.56-2ee would be relocated to proposed Sec. 319.56-29. Hass Avocados From Michoacan, Mexico (Proposed Sec. 319.56-30) Current Sec. 319.56-2ff contains restrictions on the importation of Hass avocados from Michoacan, Mexico. Under this proposal, all provisions contained in current Sec. 319.56-2ff would be relocated to proposed Sec. 319.56-30, except that the provision in Sec. 319.56- 2ff(b) pertaining to trust fund agreements would be amended and become part of revised Sec. 319.56-6, as explained earlier in this document. Peppers From Spain (Proposed Sec. 319.56-31) Current Sec. 319.56-2gg contains restrictions on the importation of peppers from Spain. Under this proposal, all provisions contained in current Sec. 319.56-2gg would be relocated to proposed Sec. 319.56- 31. Peppers From New Zealand (Proposed Sec. 319.56-32) Current Sec. 319.56-2hh contains restrictions on the importation of peppers from New Zealand. Under this proposal, all provisions contained in current Sec. 319.56-2hh would be relocated to proposed Sec. 319.56-32. Mangoes From the Philippines (Proposed Sec. 319.56-33) Current Sec. 319.56-2ii contains restrictions on the importation of mangoes from the Philippines. Under this proposal, all provisions contained in current Sec. 319.56-2ii would be relocated to proposed Sec. 319.56-33, except that: The provisions in Sec. 319.56-2ii(b) regarding the treatment schedule and procedure for mangoes would be removed, as those provisions also exist in part 305. The provision in Sec. 319.56-2ii(f) pertaining to trust fund agreements would be amended and become part of revised Sec. 319.56-6, as explained earlier in this document. The provision in Sec. 319.56-2ii(g) pertaining to responsibility for damages would be removed, as explained earlier in this document under the heading ``General Requirements for All Imported Fruits and Vegetables (Proposed Sec. 319.56-3).'' Clementines From Spain (Proposed Sec. 319.56-34) Current Sec. 319.56-2jj contains restrictions on the importation of clementines from Spain. Under this proposal, all provisions contained in current Sec. 319.56-2jj would be relocated to proposed Sec. 319.56-34, except that the provision in Sec. 319.56-2jj(a) pertaining to trust fund agreements would be amended and become part of revised Sec. 319.56-6, as explained earlier in this document. In addition, the provisions in Sec. 319.56-2jj(e) and (i) that pertain to restrictions on the distribution of clementines for the 2002-2003 shipping season would be removed, as those provisions have expired. Persimmons From the Republic of Korea (Proposed Sec. 319.56-35) Current Sec. 319.56-2kk contains restrictions on the importation of persimmons from the Republic of Korea. Under this proposal, all provisions contained in current Sec. 319.56-2kk would be relocated to proposed Sec. 319.56-35. Watermelon, Squash, Cucumber, and Oriental Melon From the Republic of Korea (Proposed Sec. 319.56-36) Current Sec. 319.56-2aa contains restrictions on the importation of watermelon, squash, cucumber, and oriental melon from the Republic of Korea. Under this proposal, all provisions contained in current Sec. 319.56-2aa would be relocated to proposed Sec. 319.56-36. Grapes From the Republic of Korea (Proposed Sec. 319.56-37) Current Sec. 319.56-2ll contains restrictions on the importation of grapes from the Republic of Korea. Under this proposal, all provisions contained in current Sec. 319.56-2ll would be relocated to proposed Sec. 319.56-37. Clementines, Mandarins, and Tangerines From Chile (Proposed Sec. 319.56-38) Current Sec. 319.56-2mm contains restrictions on the importation of clementines, mandarins, and tangerines from Chile. Under this proposal, all provisions contained in current Sec. 319.56-2mm would be relocated to proposed Sec. 319.56-38, except that the provision in Sec. 319.56-2mm(f) pertaining to trust fund agreements would be amended and become part of revised Sec. 319.56-6, as explained earlier in this document. Fragrant Pears From China (Proposed Sec. 319.56-39) Current Sec. 319.56-2nn contains restrictions on the importation of fragrant pears from China. Under this proposal, all provisions contained in current Sec. 319.56-2nn would be relocated to proposed Sec. 319.56-39. Peppers From Certain Central American Countries (Proposed Sec. 319.56- 40) Current Sec. 319.56-2oo contains restrictions on the importation of [[Page 25025]] Peppers from certain Central American countries. Under this proposal, all provisions contained in current Sec. 319.56-2oo would be relocated to proposed Sec. 319.56-40. Miscellaneous Changes In addition to the changes described elsewhere in this document, we propose to update terms and references in the regulations as follows: References to contact points for APHIS program units and other Government agencies that have been reorganized would be changed as appropriate. References to PPQ Inspector would be replaced with references to Inspector (as defined in proposed Sec. 319.56-2). References to the Department would be replaced with references to APHIS. Taxonomic names for certain pests would be updated to reflected changes in scientific classifications. We would also remove provisions pertaining to the importation of yams from Cuba (see current Sec. 319.56-21(b)(2)), as trade of those commodities with Cuba is prohibited under U.S. law. In conjunction with the proposed revision of Subpart--Fruits and Vegetables, we would also update, as necessary, various references to sections of the fruits and vegetables regulations located elsewhere in 7 CFR chapter III. Executive Order 12866 and Regulatory Flexibility Act This proposed rule has been reviewed under Executive Order 12866. The proposed rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget. We have prepared an economic analysis for this proposed rule. It provides a cost-benefit analysis as required by Executive Order 12866, as well as an initial regulatory flexibility analysis that considers the potential economic effects of this proposed rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available from the person listed under FOR FURTHER INFORMATION CONTACT. Please refer to Docket No. APHIS-2005-0106 when requesting copies. The full analysis is also available on the Regulations.gov Web site and in our reading room (instructions for accessing Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this document). We do not currently have all of the data necessary for a comprehensive analysis of the effects of this proposed rule on small entities. Therefore, APHIS welcomes public comment that would enable us to more fully consider impacts of the proposed rule, specifically information on costs that may not be covered by this analysis. In accordance with the Plant Protection Act (7 U.S.C. 7701 et seq.), the Secretary of Agriculture has the authority to promulgate regulations and take measures to prevent the spread of plant pests into or through the United States, which includes regulating the importation of fruits and vegetables into the United States. The Secretary has delegated the responsibility for enforcing the Plant Protection Act to the Administrator of APHIS. This proposed rule would revise and reorganize the regulations pertaining to the importation of fruits and vegetables to consolidate requirements of generally applicability and eliminate redundant requirements, update terms and remove outdated requirements and references, update the regulations that apply to importations of fruits and vegetables into U.S. territories, and make various editorial and nonsubstantive changes to regulations to make them easier to use. APHIS is also proposing to make substantive changes to the regulations, including: (1) Establishing criteria within the regulations that, if met, would allow APHIS to approve certain new fruits and vegetables for importation into the United States and to acknowledge pest-free areas in foreign countries without undertaking rulemaking; (2) doing away with the process of listing specific commodities that may be imported subject to certain types of risk management measures; and (3) providing for the issuance of special use permits for fruits and vegetables. These changes are necessary to simplify and expedite the APHIS process for approving new imports and pest-free areas while continuing to allow for public participation in the process. International trade in fruits and vegetables--in particular, many new and newly traded commodities--expanded rapidly over the past two decades, while also undergoing a marked change in the products demanded. According to Food and Agriculture Organization (FAO) data, the average value share of fruits and vegetables (including pulses and tree nuts) in global agricultural exports increased from 11.7 percent in the period 1977-81 to 15.1 percent in 1987-91 and reached an all time high of 16.5 percent in 1997-2001.\15\ Imports have become increasingly important for domestic fresh fruit and vegetable consumption. In 2004, the U.S. imported more than $7 billion in fresh fruits and vegetables. Maintaining the current process will make it difficult to keep pace with this rapidly increasing volume of import requests. --------------------------------------------------------------------------- \15\ Huang, Sophia Wu. Gobal Trade Patterns, in Fruits and Vegetables. Chapter 2. Economic Research Service/USAD. --------------------------------------------------------------------------- The proposed process for approving imports would apply only to commodities that, based on the findings of risk analysis, APHIS determines can be safely imported subject to one or more designated risk management measures. The new process would be a notice-based process while the existing process is a rulemaking-based process. By eliminating the need for specific prior rulemaking for notice- based process commodities, considerable time savings could be reaped. The current process for approving new imports takes a notable period of time, ranging on average from 18 months to upwards of 3 years (beginning with the initial request and ending with the publication of the final rule). A significant portion of this time is accounted for in the rulemaking process. This proposed rule would reduce the time needed for approval of some fruits and vegetables for import without eliminating opportunity for public participation in our analysis of risk. In addition, this proposed rule would help relieve the burden on APHIS' regulatory mechanism, given the volume of new commodity import requests APHIS has been receiving, and the large volume of rulemaking initiatives already underway in APHIS. Consumers benefit from the ability to purchase fruits and vegetables from a variety of sources, foreign as well as domestic. Consumer expenditures for fruit and vegetables are growing faster than for any food group other than meats. Many of the commodities that would be covered by this proposed rule would be niche products, unavailable or limited in availability in the United States. This proposed rule would allow importers to more quickly meet consumer demand for those niche products. In addition, climate causes most domestic fruit and vegetable production to be seasonal, with the largest harvests occurring during the summer and fall. Imports supplement domestic supplies, especially of fresh products during the winter, resulting in increased choices for consumers. Even where the new imports would compete directly with domestic production, [[Page 25026]] consumers would benefit when increased competition results in lower prices. In the current process, once APHIS has conducted a risk analysis and identified what phytosanitary measures are necessary to address the pest risk posed by the commodity subject to an import request, APHIS then proceeds through rulemaking. Through rulemaking, APHIS amends the fruits and vegetables regulations by listing the commodity from a specific part of the world as eligible, under specified conditions, for importation into the United States. Some import requests that might otherwise have very quickly led to new imports are delayed considerably by the rulemaking process. One reason for this is the complexities of the rulemaking process itself. There are certain statutory, executive branch, and departmental process requirements that are typically not required under a notice based process. Another is the nature of the requests. Few if any of these requests warrant an entire rulemaking in and of themselves. These requests are primarily small in stature either because they are specialty crops or are grown in limited quantities in the requesting area. Therefore these requests, when their risk analyses have been completed and needed phytosanitary measures have been identified, are necessarily grouped together for movement through the rulemaking process. These changes, along with other minor regulatory changes, are covered in rulemakings referred to as periodic amendments to Q56. A significant number of the commodity import requests that APHIS receives would likely fit the notice-based process criteria as laid out in this proposed rule. The number of import requests has grown significantly. There are currently approximately 400 commodity import requests being processed by APHIS. Because of the nature of the import requests likely to qualify for the notice-based approach, those commodities would most likely otherwise be included in periodic amendments to Q56. Included in the 11th periodic amendment \16\ were numerous herbs from Central America, figs from Mexico, peppers from Chile, cape gooseberry from Colombia, longan from China, persimmon from Spain, yard-long-bean from Nicaragua, and yellow pitaya from Colombia. These commodities would fit the notice-based process criteria of this proposed rule, subject only to designated mitigation measures. Had these commodities followed the notice-based process of this proposed rule, these commodities would have been available to U.S. consumers far sooner than was actually the case. For example, all of the pest risk analyses and risk management decisions associated with the herbs from Central America were completed by the end of 2001. The final rule allowing the import of these commodities was not published and effective until June 25, 2003. --------------------------------------------------------------------------- \16\ Importation of Fruits and Vegetables. Final Rule. Docket No. 02-024-6. Federal Register/Vol. 68, No. 122/Wednesday, June 25, 2003/Rules and Regulations. --------------------------------------------------------------------------- In 2004 and 2005, approximately 454,000 kg of the above commodities were imported into the U.S. from the countries covered in the amendment. It is estimated that the average monthly value per commodity of these shipments was about $3,900.\17\ There are approximately 400 commodity import requests currently being processed by APHIS. A significant percentage of these requests may fit the notice-based process criteria of this proposed rule. The rulemaking process is an inherently longer process than a notice-based process would be. There are complexities in the rulemaking process that are not present in the notice-based process. In addition, few if any of the requests that would fall into the notice-based process warrant an entire rulemaking in and of themselves, and must therefore be grouped with other commodities for rulemaking. Therefore, a notice based approach to commodity import approvals could be 6 to 12 months shorter than under a rulemaking approach. --------------------------------------------------------------------------- \17\ Shipment information was obtained from APHIS' PQ280 database. Information on value is from the U.S. Census Bureau, Foreign Trade Statistics `cowpeas,' `figs,' `fruit not elsewhere specified,' `other spices and herbs,' `other berries,' and `peppers' from 2004 and 2005, in 2005 dollars. --------------------------------------------------------------------------- For the purposes of estimating the benefits of a notice-based approach to approving commodity import requests, we make the following assumptions: The commodities that are approved for import under this notice-based process have values similar to those approved under the 11th periodic amendment; 30 to 50 percent (120 to 200) of current commodity import requests would be approved under this process; and, those commodities approved in the notice-based process would reach the U.S. market 6 to 12 months earlier than they would under rulemaking. Based on these assumptions, we could expect imports valued at between $2.8 million and $9.4 million to occur under a notice-based process that would not occur under the current rulemaking process. These added sales represent benefits of this proposed rule. The proposed rule will also have the benefit of improving trade relations with other countries by speeding import approvals. In addition, by moving to a notice-based process for certain commodities, fewer APHIS resources will have to be devoted to rulemaking for these commodities. Those resources will then become available for other uses. This proposed rule would not alter the manner in which the risks associated with a commodity import request are evaluated, nor would it alter the manner in which those risks are ultimately mitigated. The change would merely allow a new commodity import to move more quickly into commerce to the benefit of consumers once it has been determined that the commodity can be safely imported subject to one or more designated risk management measures. APHIS currently recognizes changes in the pest-free status of countries via rulemaking. Under this proposed rule, APHIS would use Federal Register notices and public comment to acknowledge pest-free areas in foreign countries without undertaking rulemaking. This would allow APHIS to be more responsive in recognizing changes in the pest- free status of foreign areas. This proposed rule would also clarify and strengthen requirements regarding safeguarding of fruits and vegetables that are imported from pest-free areas. These safeguards would provide necessary protection of imported commodities against pest infestations while they are in transit to the United States and are consistent with standard operating procedures of all current programs that export fruits and vegetables from pest-free areas. These changes should therefore have little, if any, impact on users of the system. If the notice-based approach is adopted for use by APHIS, the commodities approved under the notice-based track approach would no longer be listed in the regulations, nor would commodities that are currently approved for importation subject to one or more of the designated measures described previously be listed. The fruits and vegetables manual \18\ would contain a listing of all commodities approved for importation into the United States and would serve [[Page 25027]] as a comprehensive list and reference of enterable fruits and vegetables. --------------------------------------------------------------------------- \18\ Regulating the Importation of Fresh Fruits and Vegetables. United States Department of Agriculture. Marketing and Regulatory Programs. Animal and Plant Health Inspection Service. Plant Protection and Quarantine. http://www.aphis.usda.gov/ppq/manuals/port/FV_Chapters.htm. --------------------------------------------------------------------------- Most of these changes would not alter how or whether a commodity is approved for importation, merely how that status would be presented. These changes should therefore have little, if any, impact on users of the system. This proposed rule would make several changes to the issuance of permits for the importation of fruits and vegetables. This proposed rule would amend the regulations pertaining to permits to state that certain dried, cured, or processed fruits and vegetables; certain fruits and vegetables grown in Canada; and certain fruits and vegetables grown in the British Virgin Islands that are imported into the U.S. Virgin Islands; may be imported without a permit, while all other fruits and vegetables must be imported under permit. Because this change merely removes an unnecessarily confusing distinction between specific and general written permits, the change should have minor, but positive impact on users. Other current provisions regarding application for permits; issuance of permits; amendment, denial, or withdrawal of permits; and appeals would be relocated in this proposed rule. The provisions for applying for permits would also be updated to reflect the various means now available for applying for permits. These changes would not affect program operations, and should therefore have little, if any, impact on users of the system. This proposed rule would also add new provisions to the regulations which would authorize APHIS to issue special use permits that authorize the importation of small lots of fruits or vegetables that are otherwise prohibited importation under the regulations. These permits would provide for the importation of fruits and vegetables for special events such as trade shows and for scientific research. In each case, such imports would only be allowed under strict conditions approved by the administrator to address the particular risk posed by the particular imported fruit or vegetable. This change could facilitate future trade opportunities, scientific research, and potentially pest management, but would have little direct impact on imports or consumers. This proposed rule would revise, reorganize and update some of the regulations, update terms and remove outdated requirements and references, and make various editorial and nonsubstantive changes to regulations to make them easier to use. The proposed reorganization of the regulations would not affect any requirements for importing commodities but would simplify the regulations and organize them to facilitate future revisions. In addition, this proposal would also clarify treatment requirements in 7 CFR part 305. These changes do not represent a change in program operations and therefore should not affect users of the system. This proposed rule would also amend the various restrictions on the importation of okra from countries where the pink bollworm is known to exist. The regulations are outdated, and contain differing restrictions for the importation of okra from countries even though the regulations are all aimed at excluding pink bollworm from the United States. Under this proposal, all imports from pink bollworm-infested areas would be subject to the same requirements. The proposed conditions would be equivalent to our domestic regulations that pertain to pink bollworm. In 2004, okra was imported from 11 countries into the United States with a value of $17.4 million. Mexico has been the primary source of these imports. In 2004, Mexico accounted for nearly 70 percent of the imports. Other major sources are El Salvador, Honduras and Nicaragua, together accounting for about 31 percent of the imports in 2004. Currently, the regulations contain varying restrictions on the importation of okra from countries where pink bollworm is known to exist. These restrictions include fumigation of imports from pink bollworm infested countries that are moving into infested areas of the U.S. The proposed conditions would remove this restriction. This may reduce the cost associated with some imports. However, this change would primarily impact Mexican imports. Mexico is already, by far, the U.S.' largest foreign source of okra. In addition, this change would only affect a limited portion of those okra imports. Therefore, this change should have at most a minor effect on okra imports and domestic okra prices. This rule would also update the regulations to reflect current APHIS operating practices regarding biometric sampling of apricots, nectarines, peaches. Plumcot, and plums from Chile. Under the rule, the current sampling regimens would be removed and replaced with provisions that require sampling, but do not specify the percentage of fruit to be sampled or the confidence level of the inspection. Chile is the primary source of U.S. stone fruit imports, accounting for more than 97 percent $73 million in such imports in 2005. However, these modifications proposed in this rule do not represent a change in current program operations and therefore should not affect users of the system. This proposed rule would also amend the various provisions pertaining to packing and safeguarding of tomatoes. The proposed rule would require tomatoes to be safeguarded from harvest to export by insect-proof mesh screens or plastic tarpaulins, including while in transit to the packing house and while awaiting packaging. In addition, tomatoes would be required to be packed in insect-proof cartons or containers, or covered by insect-proof mesh or plastic tarpaulins for transit to the airport and subsequent export to the United States. Annual fresh tomato imports were valued at about $852 million on average for the period 2000-2004. This represents more than 14 percent of the value of all fruit and vegetable imports in that period. Fresh tomato imports are primarily from Mexico, which represents nearly 70 percent of the value of tomato imports from all countries for that period. Other important origin countries for U.S. imports of fresh tomatoes are Canada and the Netherlands. Complying with the provisions of this change could represent added cost to importers. However, this additional cost should be small since the change represents a change in the rigorousness of the packaging and containers protecting against attack by insects, not whether the tomatoes are protected. The current regulations already require packaging and containers to be fruit-fly proof. Therefore, the change should have little impact on importers of tomatoes. We welcome comments on the size of this added cost. In sum, APHIS expects little impact on the total volume of U.S. imports of fruits and vegetables, with small effects on U.S. marketers and consumers. In addition, those additional measures in this proposal that affect specific commodities are also expected to have limited impact. The main portions of this proposal, if adopted, would represent a significant structural revision of the fruits and vegetables import regulations and would establish a new process for approving certain new commodities for importation into the United States. However, those commodity import requests most likely to qualify for the notice-based process are small in stature. This is either because they are for specialty crops unavailable or limited in availability in the United States, or are for crops grown in limited quantities in the requesting area. In addition, the proposed rule would not alter the conditions for [[Page 25028]] importing the majority of currently approved fruits or vegetables. Of particular note with respect to the proposed changes to the approval process, the change would merely allow a new commodity import to move more quickly into commerce to the benefit of consumers once it has been determined that the commodity can be safely imported subject to one or more designated risk management measures. The proposed rule would not alter the manner in which the risk associated with a commodity import request is evaluated, nor would it alter the manner in which those risks are ultimately mitigated. Consumers would have quicker access to imported fruits and vegetables, though risks would still be evaluated and appropriate mitigations required, as they are currently. Also, given the growing number of requests to ship foreign fruits and vegetables to the United States, some trading partners may perceive the time required to conduct the rulemaking process as a barrier to trade. Such perception may impede their consideration of U.S. requests to ship U.S. commodities to their markets. To the extent to which trading partners consider the time it takes to conduct the rulemaking process a trade barrier, by reducing that time; this rule may facilitate the export of U.S. agricultural commodities. Initial Regulatory Flexibility Analysis The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to evaluate the potential effects of proposed and final rules on small businesses, small organizations, and small governmental jurisdictions. Section 603 of the Act requires agencies to prepare and make available for public comment an initial regulatory flexibility analysis (IRFA) describing the impacts of rules on small entities. Section 603(b) of the Act specifies the content of an IRFA. Each IRFA must contain: A description of the reasons why action by the agency is being considered; A succinct statement of the objectives of, and legal basis for, the proposed rule; A description and, where feasible, an estimate of the number of small entities to which the proposed rule will apply; A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report of record; An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule; and Descriptions of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. Our responses to these requirements follow. Rationale This proposed rule would revise and reorganize the regulations pertaining to the importation of fruits and vegetables to consolidate requirements of generally applicability and eliminate redundant requirements, update terms and remove outdated requirements and references, update the regulations that apply to importations of fruits and vegetables into U.S. territories, and make various editorial and nonsubstantive changes to regulations to make them easier to use. APHIS is also proposing to make substantive changes to the regulations, including: (1) Establishing criteria within the regulations that, if met, would allow APHIS to approve certain new fruits and vegetables for importation into the United States and to acknowledge pest-free areas in foreign countries without undertaking rulemaking; (2) doing away with the process of listing specific commodities that may be imported subject to certain types of risk management measures; and (3) providing for the issuance of special use permits for fruits and vegetables. These changes are necessary to simplify and expedite the APHIS process for approving new imports and pest-free areas while continuing to allow for public participation in the process. Objectives and Legal Basis By eliminating the need for specific prior rulemaking for notice- based process commodities, considerable time savings could be reaped. The current process for approving new imports takes a notable period of time, ranging on average from 18 months to 3 years (beginning with the initial request and ending with the publication of the final rule). Consumers benefit from the ability to purchase fruits and vegetables from a variety of sources, foreign as well as domestic. Many of the commodities that would be covered by this proposed rule would be niche products, unavailable or limited in availability in the United States. This proposed rule would allow importers to more quickly meet consumer demand for those niche products. In addition, climate causes most domestic fruit and vegetable production to be seasonal, with the largest harvests occurring during the summer and fall. Imports supplement domestic supplies, especially of fresh products during the winter, resulting in increased choices for consumers. Even where the new imports would compete directly with domestic production, consumers would benefit when increased competition results in lower prices. Under the regulations in ``Subpart--Fruits and Vegetables,'' APHIS prohibits or restricts the importation of fresh fruits and vegetables into the United States from certain parts of the world to prevent the introduction and spread of plant pests that are new to or not widely distributed within the United States. Description and Estimate of Small Entities Those entities most likely to be economically affected by the proposed rule are domestic importers and producers of fruits and vegetables. The Small Business Administration (SBA) has established guidelines for determining which establishments are to be considered small. Import/export merchants, agents and brokers are identified within the broader wholesaling trade sector. A firm primarily engaged in wholesaling fresh fruits and vegetables is considered small if it employs not more than 100 persons. In 1997,\19\ more than 96 percent (5,456 of 5,657) of fresh fruit and vegetable wholesalers would be considered small by SBA standards.\20\ All types of fruit and vegetable farms are considered small if they have annual receipts of $0.75 million or less. With some exceptions, vegetable and melon farms are largely individually owned and relatively small, with two-thirds harvesting fewer than 25 acres. In 2002, between 80 and 84 percent of vegetable and melon farms would be considered small. Similarly, although numbers have declined, fruit and tree nut production is still dominated by small, family or individually-run farm operations. In 2002, between 92 and 95 percent of all fruit and tree nut farms would be considered small.\21\ --------------------------------------------------------------------------- \19\ Establishment and firm size is not yet available for the 2002 Economic Census. \20\ 1997 Economic Census. Department of Commerce. U.S. Bureau of the Census. North American Industry Classification System (NAICS) Category--424480; Fresh fruit & vegetable wholesalers. \21\ 1997 Census of Agriculture. U.S. Department of Agriculture, National Agricultural Statistics Service. NAICS Categories--1112: Vegetable and melon farming; 1113: Fruit and tree nut farming. --------------------------------------------------------------------------- The number of entities that would be affected by this proposed rule is [[Page 25029]] unknown but those affected would likely be considered small. However, based on the information that is available, the effects of this proposed rule should be small whether the entity affected is small or large. Those commodity import requests most likely to qualify for the notice-based process are small in stature. This is either because they are for specialty crops unavailable or limited in availability in the United States, or are for crops grown in limited quantities in the requesting area. This proposal would merely allow a new commodity import to move more quickly into commerce to the benefit of consumers once it has been determined that the commodity can be safely imported subject to one or more designated risk management measures. Hence, we expect little impact on the total volume of U.S. imports of fruits and vegetables, with small effects on U.S. marketers and consumers. Nevertheless, we invite public comment on the proposed rule-- including any comment on the expected impacts for small entities, and on how the proposed rule could be modified to reduce expected costs or burdens for small entities consistent with its objectives. Any comment suggesting changes to the proposed criteria should be supported by an explanation of why the changes should be considered. Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities The proposed rule contains, under the heading ``Paperwork Reduction Act,'' a description of the information collection and recordkeeping requirements associated with the proposed rule. Duplication, Overlap or Conflict With Other Federal Rules APHIS is unaware of any Federal rules that are duplicative, overlapping, or conflicting with this proposed rule. Alternatives One alternative to this proposed rule would be to simply continue under APHIS' current process of authorizing the importation of fruits and vegetables. In this case, we would continue to list all newly approved fruits and vegetables in the regulations through notice-and- comment rulemaking, as we have been doing since 1987. This approach is unsatisfactory, because the number of requests we receive from foreign exporters and domestic importers to amend the regulations has been steadily increasing. Maintaining the current process will make it difficult to keep pace with the volume of import requests. Therefore, this alternative was rejected. We believe that the new approach would enable us to be more responsive to the import requests of our trading partners while maintaining the transparency of our decisionmaking afforded by notice-and-comment rulemaking. Prior to 1987, APHIS authorized the importation of a fruit or vegetable by simply issuing a permit once the Agency was satisfied that the relevant criteria in the regulations had been met. Another alternative to this proposed rule would be to return to this method of authorizing fruit and vegetable importations. This approach is unsatisfactory, because it does not provide the opportunity for public analysis of and comment on the science associated with such imports. Therefore, this alternative was rejected. We believe that the new approach would enable us to be more responsive to the import requests of our trading partners while maintaining the transparency of our decisionmaking afforded by notice-and-comment rulemaking. Future Analyses If this rule is adopted as a final rule, the requirements of Executive Order 12866 or the Regulatory Flexibility Act will be met through the analyses that accompany the final rule. The economic effects of importing the specific commodities that are approved using the streamlined approach would not be analyzed at the point of approval, since such approval would occur without additional rulemaking. Executive Order 12988 This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule. National Environmental Policy Act The majority of the regulatory changes proposed in this document are nonsubstantive, and would therefore have no effects on the environment. However, this proposal, if adopted, would allow APHIS to approve certain new fruits and vegetables for importation into the United States without undertaking rulemaking. Despite the fact that those fruits and vegetable imports would no longer be contingent on the completion of rulemaking, the requirements of the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.) would still apply. As such, for each additional fruit or vegetable approved for importation, APHIS would make available to the public documentation related to our analysis of the potential environmental effects of such new imports. This documentation would likely be made available at the same time and via the same Federal Register notice as the risk analysis for the proposed new import. Paperwork Reduction Act In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2005-0106. Please send a copy of your comments to: (1) Docket No. APHIS-2005-0106, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule. In this document, APHIS is proposing, among other things, to establish a regulatory framework that would allow us to approve certain new fruits and vegetables for importation into the United States more effectively and expeditiously. These changes are intended to simplify and expedite our processes for approving certain new imports and pest- free areas while continuing to allow for public participation in the processes. Under this proposed rule, APHIS may authorize the importation of additional fruits and vegetables subject to permitting and phytosanitary certification requirements. While the specific commodities that may be approved for importation using the new approach described in the proposed rule are unknown at this time, we have estimated the potential reporting burden on the public that could arise if the new approach is adopted. The new burden would be in the form of phytosanitary certificate requirements for some, and permit requirements for all, newly approved commodities. We are soliciting comments from the public (as well as affected agencies) concerning our proposed information [[Page 25030]] collection requirements. These comments will help us: (1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility; (2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses). Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.8238 hours per response. Respondents: Importers, exporters, and national plant protection organizations. Estimated annual number of respondents: 1,120. Estimated annual number of responses per respondent: 3. Estimated annual number of responses: 3,360. Estimated total annual burden on respondents: 2,768 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.) Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477. Government Paperwork Elimination Act Compliance The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477. Lists of Subjects 7 CFR Part 305 Agricultural commodities, Chemical treatment, Cold treatment, Garbage treatment, Heat treatment, Imports, Irradiation, Phytosanitary treatment, Plant diseases and pests, Quarantine, Quick freeze, Reporting and recordkeeping requirements, Transportation. 7 CFR Part 319 Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables. 7 CFR Part 352 Customs duties and inspection, Imports, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation. Accordingly, we propose to amend 7 CFR chapter III as follows: PART 305--PHYTOSANITARY TREATMENTS 1. The authority citation for part 305 would continue to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. Sec. 305.2 [Amended] 2. In Sec. 305.2, paragraph (i), the table would be amended as follows: a. In the entry for acorns and chestnuts from all countries, by removing the reference to ``Sec. 319.56-2b'' and adding a reference to ``Sec. 319.56-11'' in its place. b. In the entry for yam from all countries, by removing the words ``(See Sec. 319.56-2l of this chapter)''. c. In the entry for papaya from Belize, by removing the words ``(See Sec. 319.56-2(j) of this part)''. d. In the entry for cherimoya from Chile, by removing the words ``(See Sec. 319.56-2z of this chapter for additional treatment information)''. 3. A new Sec. 305.3 would be added to read as follows: Sec. 305.3 Monitoring and certification of treatments. (a) All treatments approved under part 305 are subject to monitoring and verification by APHIS. (b) Any treatment performed outside the United States must be monitored and certified by an inspector or an official from the national plant protection organization of the exporting country. If monitored and certified by an official of the plant protection organization of the exporting country, the treated commodities must be accompanied a phytosanitary certificate issued by the national plant protection organization of the exporting country certifying that treatment was applied in accordance with APHIS regulations. The phytosanitary certificate must be provided to an inspector when the commodity is offered for entry into the United States. During the entire interval between treatment and export, the consignment must be stored and handled in a manner that prevents any infestation by pests and noxious weeds. 4. Section 305.15 would be revised to read as follows: Sec. 305.15 Treatment requirements. (a) Approval of treatment facilities. All facilities or locations used for refrigerating fruits or vegetables in accordance with Sec. 305.16 must be approved by APHIS. Re-approval of the facility or carrier is required annually, or as often as APHIS directs, depending on treatments performed, commodities handled, and operations conducted at the facility. In order to be approved, facilities and carriers must: (1) Be capable of keeping treated and untreated fruits, vegetables, or other articles separate so as to prevent reinfestation of articles and spread of pests; (2) Have equipment that is adequate to effectively perform cold treatment. (b) Places of treatment; ports of entry. Precooling and refrigeration may be performed prior to, or upon arrival of fruits and vegetables in the United States, provided treatments are performed in accordance with applicable requirements of this section. Fruits and vegetables that are not treated prior to arrival in the United States must be treated after arrival only in cold storage warehouses approved by the Administrator and located in the area north of 39[deg] longitude and east of 104[deg] latitude or at one of the following ports: The maritime ports of Wilmington, NC; Seattle, WA; Corpus Christi, TX; and Gulfport, MS; Seattle-Tacoma International Airport, Seattle, WA; Hartsfield-Atlanta International Airport, Atlanta, GA; and Washington Dulles International Airport, Chantilly, VA. (c) Cold treatment enclosures. All enclosures in which cold treatment is performed, including refrigerated containers, must: (1) Be capable of precooling and holding fruits or vegetables at temperatures less than or equal to 2.2 [deg]C (36 [deg]F) or the maximum temperature prescribed in an approved treatment schedule for any fruit or vegetable that is to be treated in the enclosure. (2) Maintain pulp temperatures according to treatment schedules with no more than a 0.3 [deg]C (0.54 [deg]F) variation in temperature. [[Page 25031]] (3) Be structurally sound and adequate to maintain required temperatures. (4) Be equipped with recording devices, such that automatic, continuous temperature records are maintained and secured. Recording devices must be capable of generating temperature charts for verification of treatment by an inspector. (d) Precooling. Before loading in cold treatment containers, packages of fruit must be precooled to a treatment temperature or to a uniform temperature not to exceed 4.5 [deg]C (40 [deg]F) or precooled at the terminal to 2.2 [deg]C (36 [deg]F). (1) Treatment in transit. Fruit that is to be treated in transit must be precooled either at a dockside refrigeration plant prior to loading aboard the carrying vessel, or aboard the carrying vessel. If precooling is accomplished prior to loading aboard the carrying vessel, an authorized official of the country of origin must supervise the precooling operation and certify the treatment by recording pulp temperatures of fruit sampled at different locations of the lot to ensure that the precooling was complete and uniform. (2) Treatment upon arrival in the United States. Fruit that is to be treated upon arrival in the United States must arrive at a temperature sufficiently low to prevent insect activity and must be promptly precooled and refrigerated. Fruit to be both precooled and refrigerated after arrival in the United States must be delivered to the treatment facility subject to safeguards required by an inspector. (e) Treatment procedures. (1) All material, labor, and equipment for cold treatment performed on vessels must be provided by the vessel or vessel agent. (2) Refrigeration must be completed in the container, compartment, or room in which it is begun (3) Fruit that may be cold treated must be safeguarded to prevent cross-contamination or mixing with other infested fruit. (4) Breaks, damage, etc., in the treatment enclosure that preclude maintaining correct temperatures must be repaired before use. (5) An inspector must approve loading of compartment, number and placement of sensors, and initial fruit temperature readings before beginning the treatment. (6) At least three temperature sensors must be used in the treatment compartment during treatment. (7) The time required to complete the treatment begins when the temperature inside the fruit reaches the required temperature. Refrigeration continues until the vessel arrives at the port of destination and the fruit is released for unloading by an inspector even though this may prolong the period required for the cold treatment. (8) Only the same type of fruit in the same type of package may be treated together in a container; no mixture of fruits in containers will be treated. (9) Fruit must be stacked to allow cold air to be distributed throughout the enclosure, with no pockets of warmer air, and to allow random sampling of pulp temperature in any location in load. Temperatures must be recorded at intervals no longer than 1 hour apart. Gaps of longer than 1 hour may invalidate the treatment or indicate treatment failure. (10) Cold treatment is not completed until so designated by an inspector or the certifying official of the foreign country; shipments of treated commodities may not be discharged until full APHIS clearance has been completed, including review and approval of treatment record charts. (11) Pretreatment conditioning (heat shock or 100.4 [deg]F for 10 to 12 hours) of fruits is optional and is the responsibility of the shipper. (12) Cold treatment of fruits in break-bulk vessels or containers must be initiated by an inspector if there is not a treatment technician who has been trained to initiate cold treatments for either break-bulk vessels or containers. (13) Inspection of fruits after cold treatment for Mediterranean fruit fly. An inspector will sample and cut fruit from each shipment cold treated for Mediterranean fruit fly (Medfly) to monitor treatment effectiveness. If a single live Medfly in any stage of development is found, the shipment will be held until an investigation is completed and appropriate remedial actions have been implemented. If APHIS determines at any time that the safeguards contained in this section do not appear to be effective against the Medfly, APHIS may suspend the importation of fruits from the originating country and conduct an investigation into the cause of the deficiency. (14) Caution and disclaimer. The cold treatments required for the entry of fruit are considered necessary for the elimination of plant pests, and no liability shall attach to the U.S. Department of Agriculture or to any officer or representative of that Department in the event injury results to fruit offered for entry in accordance with these instructions. In prescribing cold treatments of certain fruits, it should be emphasized that inexactness and carelessness in applying the treatments may result in injury to the fruit, or its rejection for entry. (15) Additional requirements for treatments performed after arrival in the United States. (i) Maritime port of Wilmington, NC. Shipments of fruit arriving at the maritime port of Wilmington, NC, for cold treatment, in addition to meeting all other applicable requirements of this section, must meet the following special conditions: (A) Bulk shipments (those shipments which are stowed and unloaded by the case or bin) of fruit must arrive in fruit fly-proof packaging that prevents the escape of adult, larval, or pupal fruit flies. (B) Bulk and containerized shipments of fruit must be cold-treated within the area over which the U.S. Department of Homeland Security is assigned the authority to accept entries of merchandise, to collect duties, and to enforce the various provisions of the customs and navigation laws in force. (C) Advance reservations for cold treatment space must be made prior to the departure of a shipment from its port of origin. (D) The cold treatment facility must remain locked during non- working hours. (ii) Maritime port of Seattle, WA. Shipments of fruit arriving at the maritime port of Seattle, WA, for cold treatment, in addition to meeting all other applicable requirements of this section, must meet the following special conditions: (A) Bulk shipments (those shipments which are stowed and unloaded by the case or bin) of fruit must arrive in fruit fly-proof packaging that prevents the escape of adult, larval, or pupal fruit flies. (B) Bulk and containerized shipments of fruit must be cold-treated within the area over which the U.S. Department of Homeland Security is assigned the authority to accept entries of merchandise, to collect duties, and to enforce the various provisions of the customs and navigation laws in force. (C) Advance reservations for cold treatment space must be made prior to the departure of a shipment from its port of origin. (D) The cold treatment facility must remain locked during non- working hours. (E) Blacklight or sticky paper must be used within the cold treatment facility, and other trapping methods, including Jackson/ methyl eugenol and McPhail traps, must be used within the 4 square miles surrounding the cold treatment facility. [[Page 25032]] (F) The cold treatment facility must have contingency plans, approved by the Administrator, for safely destroying or disposing of fruit. (iii) Airports of Atlanta, GA and Seattle, WA. Shipments of fruit arriving at the airports of Atlanta, GA, and Seattle, WA, for cold treatment, in addition to meeting all other applicable requirements of this section, must meet the following special conditions: (A) Bulk and containerized shipments of fruit must arrive in fruit fly-proof packaging that prevents the escape of adult, larval, or pupal fruit flies. (B) Bulk and containerized shipments of fruit arriving for cold treatment must be cold treated within the area over which the U.S. Department of Homeland Security is assigned the authority to accept entries of merchandise, to collect duties, and to enforce the various provisions of the customs and navigation laws in force. (C) The cold treatment facility and APHIS must agree in advance on the route by which shipments are allowed to move between the aircraft on which they arrived at the airport and the cold treatment facility. The movement of shipments from aircraft to cold treatment facility will not be allowed until an acceptable route has been agreed upon. (D) Advance reservations for cold treatment space must be made prior to the departure of a shipment from its port of origin. (E) The cold treatment facility must remain locked during non- working hours. (F) Blacklight or sticky paper must be used within the cold treatment facility, and other trapping methods, including Jackson/ methyl eugenol and McPhail traps, must be used within the 4 square miles surrounding the cold treatment facility. (G) The cold treatment facility must have contingency plans, approved by the Administrator, for safely destroying or disposing of fruit. (iv) Maritime ports of Gulfport, MS, and Corpus Christi, TX. Shipments of fruit arriving at the ports of Gulfport, MS, and Corpus Christi, TX, for cold treatment, in addition to meeting all other applicable requirements of this section, must meet the following special conditions: (A) All fruit entering the port for cold treatment must move in maritime containers. No bulk shipments (those shipments which are stowed and unloaded by the case or bin) are permitted. (B) Within the container, the fruit intended for cold treatment must be enclosed in fruit fly-proof packaging that prevents the escape of adult, larval, or pupal fruit flies. (C) All shipments of fruit arriving at the port for cold treatment must be cold treated within the area over which the U.S. Department of Homeland Security is assigned the authority to accept entries of merchandise, to collect duties, and to enforce the various provisions of the customs and navigation laws in force. (D) The cold treatment facility and APHIS must agree in advance on the route by which shipments are allowed to move between the vessel on which they arrived at the port and the cold treatment facility. The movement of shipments from vessel to cold treatment facility will not be allowed until an acceptable route has been agreed upon. (E) Advance reservations for cold treatment space at the port must be made prior to the departure of a shipment from its port of origin. (F) Devanning, the unloading of fruit from containers into the cold treatment facility, must adhere to the following requirements: (1) All containers must be unloaded within the cold treatment facility; and (2) Untreated fruit may not be exposed to the outdoors under any circumstances. (G) The cold treatment facility must remain locked during non- working hours. (H) Blacklights or sticky paper must be used within the cold treatment facility, and other trapping methods, including Jackson/ methyl eugenol and McPhail traps, must be used within the 4 square miles surrounding the cold treatment facility at the maritime port of Gulfport, MS, and within the 5 square miles surrounding the cold treatment facility at the maritime port of Corpus Christi, TX. (I) During cold treatment, a backup system must be available to cold treat the shipments of fruit should the primary system malfunction. The facility must also have one or more reefers (cold holding rooms) and methods of identifying lots of treated and untreated fruits. (J) The cold treatment facility must have the ability to conduct methyl bromide fumigations on site. (K) The cold treatment facility must have contingency plans, approved by the Administrator, for safely destroying or disposing of fruit. (f) Monitoring. Treatment must be monitored by an inspector to ensure proper administration of the treatment. An inspector must also approve the recording devices and sensors used to monitor temperatures and conduct an operational check of the equipment before each use and ensure sensors are calibrated. An inspector may approve, adjust, or reject the treatment. (g) Compliance agreements. Facilities located in the United States must operate under a compliance agreement with APHIS. The compliance agreement must be signed by a representative of the cold treatment facility and APHIS. The compliance agreement must contain requirements for equipment, temperature, circulation, and other operational requirements for performing cold treatment to ensure that treatments are administered properly. Compliance agreements must allow officials of APHIS to inspect the facility to monitor compliance with the regulations. (h) Work plans. Facilities located outside the United States may operate in accordance with a bilateral work plan. The work plan, if and when required, must be signed by a representative of the cold treatment facility, the national plant protection organization of the country of origin (NPPO), and APHIS. The work plans must contain requirements for equipment, temperature, circulation, and other operational requirements for performing cold treatment to ensure that cold treatments are administered properly. Work plans for facilities outside the United States may also include trust fund agreement information regarding payment of the salaries and expenses of APHIS employees on site. Work plans must allow officials of the NPPO and APHIS to inspect the facility to monitor compliance with APHIS regulations. Sec. 305.17 [Amended] 5. In Sec. 305.17, paragraph (a) would be amended by removing the citation ``319.56-2c'' and adding the citation ``319.56-12'' in its place. PART 319--FOREIGN QUARANTINE NOTICES 6. The authority citation for part 319 would continue to read as follows: Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. Sec. 319.28 [Amended] 7. Section 319.28 would be amended as follows: a. In paragraph (a)(2), the words ``(except as provided by Sec. 319.56-2f of this part)'' would be removed. b. In paragraph (e), the words ``the Fruits and Vegetables Quarantine (Sec. 319.56)'' would be removed and the words ``Subpart-- Fruits and Vegetables of this part'' would be added in their place. [[Page 25033]] Sec. 319.37-2 [Amended] 8. In Sec. 319.37-2, paragraph (a), in the table, the entry for ``Cocos nucifera'' would be amended by removing the citation ``Sec. 319.56'' in column 1 and adding the citation ``Sec. 319.56-11'' in its place. Sec. 319.40-2 [Amended] 9. In Sec. 319.40-2, paragraph (c) would be amended by removing the words ``Sec. Sec. 319.56 through 319.56-8,''. Sec. 319.40-9 [Amended] 10. In Sec. 319.40-9, paragraph (a)(4)(i), footnote 4 would be amended by removing the words ``Sec. Sec. 319.56 through 319.56-8,''. Sec. 319.41a [Amended] 11. In Sec. 319.41a, paragraph (c) would be amended by removing the citation ``Sec. 319.56-2'' and adding the citation ``Sec. 319.56- 3'' in its place. 12. Subpart--Fruits and Vegetables, Sec. Sec. 319.56 through 319.56-8, would be revised to read as follows: Subpart--Fruits and Vegetables Sec. 319.56-1 Notice of quarantine. 319.56-2 Definitions. 319.56-3 General requirements for all imported fruits and vegetables. 319.56-4 Approval of certain fruits and vegetables for importation. 319.56-5 Pest-free areas. 319.56-6 Trust fund agreements. 319.56-7 Territorial applicability and exceptions. 319.56-8 through 319.56-9 [Reserved] 319.56-10 Importation of fruits and vegetables from Canada. 319.56-11 Importation of dried, cured, or processed fruits, vegetables, nuts, and legumes. 319.56-12 Importation of frozen fruits and vegetables. 319.56-13 Additional requirements for certain fruits and vegetables. 319.56-14 through 319.56-19 [Reserved] 319.56-20 Apples and pears from Australia (including Tasmania) and New Zealand. 319.56-21 Okra from certain countries. 319.56-22 Apples and pears from certain countries in Europe. 319.56-23 Apricots, nectarines, peaches, plumcot, and plums from Chile. 319.56-24 Lettuce and peppers from Israel. 319.56-25 Papayas from Central America and Brazil. 319.56-26 Melon and watermelon from certain countries in South America. 319.56-27 Fuji variety apples from Japan and the Republic of Korea. 319.56-28 Tomatoes from certain countries. 319.56-29 Ya variety pears from China. 319.56-30 Hass avocados from Michoacan, Mexico. 319.56-31 Peppers from Spain. 319.56-32 Peppers from New Zealand. 319.56-33 Mangoes from the Philippines. 319.56-34 Clementines from Spain. 319.56-35 Persimmons from the Republic of Korea. 319.56-36 Watermelon, squash, cucumber, and oriental melon from the Republic of Korea. 319.56-37 Grapes from the Republic of Korea. 319.56-38 Clementines, mandarins, and tangerines from Chile. 319.56-39 Fragrant pears from China. 319.56-40 Peppers from certain Central American countries. Subpart--Fruits and Vegetables Sec. 319.56-1 Notice of quarantine. (a) Under Sec. 412(a) of the Plant Protection Act, the Secretary of Agriculture may prohibit or restrict the importation and entry of any plant or plant product if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction into the United States or the dissemination within the United States of a plant pest or noxious weed. (b) The Secretary has determined that it is necessary to prohibit the importation into the United States of fruits and vegetables and associated plants and portions of plants except as provided in this part. Sec. 319.56-2 Definitions. Above ground parts. Any plant parts, such as stems, leaves, fruit, or inflorescence (flowers), that grow solely above the soil surface. Administrator. The Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture, or any other employee of the United States Department of Agriculture delegated to act in his or her stead. APHIS. The Animal and Plant Health Inspection Service, United States Department of Agriculture. Commercial consignment. A lot of fruits or vegetables that an inspector identifies as having been imported for sale and distribution. Such identification will be based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower or packing house on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer. Commodity. A type of plant, plant product or other regulated article being moved for trade or other purpose. Consignment. A quantity of plants, plant products, and/or other articles, including fruits or vegetables, being moved from one country to another and covered, when required, by a single phytosanitary certificate (a consignment may be composed of one or more commodities or lots). Country of origin. Country where the plants from which the plant products are derived were grown. Cucurbits. Any plants in the family Cucurbitaceae. Field. A plot of land with defined boundaries within a place of production on which a commodity is grown. Fruits and vegetables. A commodity class for fresh parts of plants intended for consumption or processing and not for planting. Import and importation. To move into, or the act of movement into, the territorial limits of the United States. Inspector. Any individual authorized by the Administrator of APHIS or the Commissioner of the Bureau of Customs and Border Protection, Department of Homeland Security, to enforce the regulations in this subpart. Lot. A number of units of a single commodity, identifiable by its homogeneity of composition and origin, forming all or part of a consignment. National plant protection organization. Official service established by a government to discharge the functions specified by the International Plant Protection Convention. Noncommercial consignment. A lot of fruits or vegetables that an inspector identifies as having been imported for personal use and not for sale. Permit. A written, oral, or electronically transmitted authorization to import fruits or vegetables in accordance with this subpart. Phytosanitary certificate. A document, including electronic versions, that is related to a consignment and that: (1) Is patterned after the model certificate of the International Plant Protection Convention (IPPC), a multilateral convention on plant protection under the authority of the Food and Agriculture Organization of the United Nations (FAO); (2) Is issued by an official of a foreign national plant protection organization in one of the five official languages of the FAO; (3) Is addressed to the plant protection service of the United States (Animal and Plant Health Inspection Service); (4) Describes the consignment; (5) Certifies the place of origin for all contents of the consignment; (6) Certifies that the consignment has been inspected and/or tested according to appropriate official procedures and is considered to be free from quarantine pests of the United States; (7) Contains any additional declarations required by this subpart; and [[Page 25034]] (8) Certifies that the consignment conforms with the phytosanitary requirements of the United States and is considered eligible for importation pursuant to the laws and regulations of the United States. Phytosanitary measure. Any legislation, regulation or official procedure having the purpose to prevent the introduction and/or spread of quarantine pests, or to limit the economic impact of regulated non- quarantine pests. Place of production. Any premises or collection of fields operated as a single production or farming unit. This may include a production site that is separately managed for phytosanitary purposes. Plant debris. Detached leaves, twigs, or other portions of plants, or plant litter or rubbish as distinguished from approved parts of clean fruits and vegetables, or other commercial articles. Port of first arrival. The first port within the United States where a consignment is (1) offered for consumption entry or (2) offered for entry for immediate transportation in bond. Production site. A defined portion of a place of production utilized for the production of a commodity that is managed separately for phytosanitary purposes. This may include the entire place of production or portions of it. Examples of portions of places of production are a defined orchard, grove, field, or premises. Quarantine pest. A pest of potential economic importance to the area endangered by it and not yet present there, or present but not widely distributed there and being officially controlled. United States. All of the States of the United States, the Commonwealth of Northern Mariana Islands, the Commonwealth of Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the United States, and any other territory or possession of the United States. West Indies. The foreign islands lying between North and South America, the Caribbean Sea, and the Atlantic Ocean, divided into the Bahamas, the Greater Antilles (including Hispaniola), and the Lesser Antilles (including the Leeward Islands, the Windward Islands, and the islands north of Venezuela). Sec. 319.56-3 General requirements for all imported fruits and vegetables. All fruits and vegetables that are allowed importation under this subpart must be imported in accordance with the following requirements, except as specifically provided otherwise in this subpart. (a) Freedom from plant debris. All fruits and vegetables imported under this subpart, whether in commercial or noncommercial consignments, must be free from plant debris, as defined in Sec. 319.56-2; (b) Permit. (1) All fruits and vegetables imported under this subpart, whether commercial or noncommercial consignments, must be imported under permit issued by APHIS, must be imported under the conditions specified in the permit, and must be imported in accordance with all applicable regulations in this part; except for: (i) Dried, cured, or processed fruits and vegetables (except frozen fruits and vegetables), including cured figs and dates, raisins, nuts, and dried beans and peas, except certain acorns and chestnuts subject to Sec. 319.56-11 of this subpart; (ii) Fruits and vegetables grown in Canada (except potatoes from Newfoundland and that portion of the Municipality of Central Saanich in the Province of British Columbia east of the West Saanich Road, which are prohibited importation into the United States); and (iii) Fruits and vegetables except mangoes, grown in the British Virgin Islands that are imported into the U.S. Virgin Islands. (2) Applying for a permit. Permit applications must be submitted in writing or electronically as provided in this paragraph and must be submitted in advance of the proposed importation. Applications must state the country or locality of origin of the fruits or vegetables, the anticipated port of first arrival, the name and address of the importer in the United States, and the identity (scientific name preferred) and quantity of the fruit or vegetable. Use of PPQ Form 587 or Internet application is preferred. (i) By mail. Persons who wish to apply by mail for a permit to import fruits or vegetables into the United States must submit their application to the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Permit Services, 4700 River Road, Unit 136, Riverdale, MD 20737-1236. (ii) Via the Internet. Persons who wish to apply for a permit to import fruits or vegetables into the United States via the internet must do so using APHIS Plant Protection and Quarantine's permit Web site at http://www.aphis.usda.gov/ppq/permits/. (iii) By fax. Persons who wish to apply by fax for a permit to import fruits or vegetables into the United States must do so by faxing their application to: Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Permit Services, (301) 734-5786. (3) Issuance of permits. If APHIS approves a permit application, APHIS will issue a permit specifying the conditions applicable to the importation of the fruit or vegetable. (4) Issuance of oral permits. Oral permits may be issued at ports of entry for noncommercial consignments if the commodity is admissible with inspection only. Oral permits may be issued for commercial consignments of fruits and vegetables that are not accompanied by a written permit upon arrival in the United States if all applicable entry requirements are met and proof of application for a written permit is supplied to an inspector. (5) Amendment, denial, or withdrawal of permits. The Administrator may amend, deny, or withdraw a permit at any time if he or she determines that conditions exist that present an unacceptable risk of the fruit or vegetable introducing quarantine pests or noxious weeds into the United States. If the withdrawal is oral, the withdrawal of the permit and the reasons for the withdrawal will be confirmed in writing as promptly as circumstances allow. (6) Appeals. Any person whose permit has been amended, denied, or withdrawn may appeal the decision in writing to the Administrator within 10 days after receiving the written notification of the decision. The appeal must state all of the facts and reasons upon which the person relies to show that the permit was wrongfully amended, denied, or withdrawn. The Administrator will grant or deny the appeal, in writing, stating the reasons for granting or denying the appeal, as promptly as circumstances permit. If there is a conflict as to any material fact and the person who has filed an appeal requests a hearing, a hearing will be held to resolve the conflict. Rules of practice concerning the hearing will be adopted by the Administrator. The permit withdrawal will remain in effect pending resolution of the appeal or the hearing. (7) Special use permits. The Administrator may grant special use permits that authorize the importation of small lots of fruits or vegetables that are otherwise prohibited importation under this part, provided that the fruits or vegetables: (i) Are not intended for commercial distribution; (ii) Are to be imported, transported, and stored or displayed under specific conditions which the Administrator has [[Page 25035]] determined will mitigate the pest risk posed by the imported fruits or vegetables; and (iii) Are to be consumed, disposed of, destroyed, or re-exported at a time and in a manner and place ordered by an inspector or as specified in the permit. (c) Ports of entry. (1) Fruits and vegetables must be imported into specific ports if so required by this subpart or by part 305 of this chapter, or if so required by a permit issued under paragraph (b) of this section for the importation of the particular fruit or vegetable. If a permit issued for the importation of fruits or vegetables names specific port(s) where the fruits or vegetables must be imported, the fruits and vegetables may only be imported into the port(s) named in the permit. If a permit issued for the importation of fruits or vegetables does not name specific port(s) where the fruits or vegetables must be imported, the fruits and vegetables may be imported into any port referenced in paragraph (c)(2) of this section. (2) Fruits and vegetables imported under this subpart may be imported into any port listed in 19 CFR 101.3(b)(1), except as otherwise provided by part 319 or by a permit issued in accordance with part 319, and except as provided in Sec. 330.104 of this chapter. Fruits and vegetables that are to be cold treated at ports in the United States may only be imported into specific ports as provided in Sec. 305.15 of this chapter. (d) Inspection, treatment, and other requirements. All imported fruits or vegetables are subject to inspection, are subject to such disinfection at the port of first arrival as may be required by an inspector, and are subject to reinspection at other locations at the option of an inspector. If an inspector finds plants or portions of plants, or a plant pest or noxious weed, or evidence of a plant pest or noxious weed on or in any fruit or vegetable or its container, or finds that the fruit or vegetable may have been associated with other articles infested with plant pests or noxious weeds, the owner or agent of the owner of the fruit or vegetable must clean or treat the fruit or vegetable and its container as required by an inspector, and the fruit or vegetable is also subject to reinspection, cleaning, and treatment at the option of an inspector at any time and place until all applicable requirements of this subpart have been accomplished. (1) Notice of arrival; assembly for inspection. Any person importing fruits and vegetables into the United States must offer those agricultural products for inspection and entry at the port of first arrival. The owner or agent must assemble the fruits and vegetables for inspection at the port of first arrival, or at any other place designated by an inspector, and in a manner designated by the inspector. All fruits and vegetables must be accurately disclosed and made available to an inspector for examination. The owner or the agent must provide an inspector with the name and address of the consignee and must make full disclosure of the type, quantity, and country and locality of origin of all fruits and vegetables in the consignment, either orally for noncommercial consignments or on an invoice or similar document for commercial consignments. (2) Refusal of entry. If an inspector finds that an imported fruit or vegetable is prohibited, or is not accompanied by required documentation, or is so infested with a plant pest or noxious weed that, in the judgment of the inspector, it cannot be cleaned or treated, or contains soil or other prohibited contaminants, the entire lot or consignment may be refused entry into the United States. (3) Release for movement. No person may move a fruit or vegetable from the port of first arrival unless an inspector has either: (i) Released it; (ii) Ordered treatment at the port of first arrival and, after treatment, released the fruit or vegetable; (iii) Authorized movement of the fruit or vegetable to another location for treatment, further inspection, or destruction; or (iv) Ordered the fruit or vegetable to be reexported. (4) Notice to owner of actions ordered by inspector. If an inspector orders any disinfection, cleaning, treatment, reexportation, recall, destruction, or other action with regard to imported fruits or vegetables while the shipment is in foreign commerce, the inspector will issue an emergency action notification (PPQ Form 523) to the owner of the fruits or vegetables or to the owner's agent. The owner must, within the time and in the manner specified in the PPQ Form 523, destroy the fruits and vegetables, ship them to a point outside the United States, move them to an authorized site, and/or apply treatments or other safeguards to the fruits and vegetables as prescribed to prevent the introduction of plant pests or noxious weeds into the United States. (e) Costs and charges. APHIS will be responsible only for the costs of providing the services of an inspector during regularly assigned hours of duty and at the usual places of duty.\1\ The owner of imported fruits or vegetables is responsible for all additional costs of inspection, treatment, movement, storage, destruction, or other measures ordered by an inspector under this subpart, including any labor, chemicals, packing materials, or other supplies required. APHIS will not be responsible for any costs or charges, other than those identified in this section. --------------------------------------------------------------------------- \1\ Provisions relating to costs for other services of an inspector are contained in part 354 of this chapter. --------------------------------------------------------------------------- (f) APHIS not responsible for damage. APHIS assumes no responsibility for any damage to fruits or vegetables that results from the application of treatments or other measures required under this subpart (or under part 305 of this chapter) to protect against the introduction of plant pests into the United States. Sec. 319.56-4 Approval of certain fruits and vegetables for importation. (a) Determination by the Administrator. The Administrator has determined that the application of one or more of the designated phytosanitary measures cited in paragraph (b) of this section to certain imported fruits and vegetables mitigates the risk posed by those commodities, and that such fruits and vegetables may be imported into the United States subject to one or more of those measures, as provided in paragraphs (c) and (d) of this section. The name and origin of all fruits and vegetables authorized importation under this section, as well as the applicable requirements for their importation may be found on the Internet at http://www.aphis.usda.gov/ppq/manuals/port/FV_Chapters.htm. Commodities that require phytosanitary measures other than one or more of the designated phytosanitary measures cited in paragraph (b) of this section may only be imported in accordance with applicable requirements in Sec. 319.56-3 and commodity-specific requirements contained elsewhere in this subpart. (b) Designated phytosanitary measures. (1) Fruits or vegetables are subject to inspection upon arrival in the United States and comply with all applicable provisions of Sec. 319.56-3. (2) The fruits or vegetables are imported from a pest-free area in the country of origin and are accompanied by a phytosanitary certificate stating that the fruits or vegetables originated in a pest- free area in the country of origin. (3) The fruits or vegetables are treated in accordance with part 305 of this chapter. [[Page 25036]] (4) The fruits or vegetables are inspected in the country of origin by an inspector or an official of the national plant protection organization of the exporting country, and have been found free of one or more specific quarantine pests identified by risk analysis as likely to follow the import pathway. (c) Fruits and vegetables authorized importation under this section. (1) Previously approved fruits and vegetables. Fruits and vegetables that were authorized importation under this subpart either directly by permit or by specific regulation as of [effective date of final rule] and that were subject only to one or more of the designated phytosanitary measures cited in paragraph (b) of this section and the general requirements of Sec. 319.56-3, may continue to be imported into the United States under the same requirements that applied before [effective date of final rule], except as provided in paragraph (d) of this section. (2) Other fruits and vegetables. Fruits and vegetables that do not meet the criteria in paragraph (c)(1) of this section may be authorized importation under this section as follows: (i) Pest risk analysis. The risk posed by the particular fruit or vegetable from a specified country or other region has been evaluated and publicly communicated as follows: (A) Availability of pest risk analysis. APHIS published in the Federal Register, for a minimum of 60 days public comment, a notice announcing the availability of a pest risk analysis that evaluated the risks associated with the importation of the particular fruit or vegetable. (B) Determination of risk; factors considered. The Administrator determined, and announced in the notice referred to in the previous paragraph, that, based on the information available, the application of one or more of the designated phytosanitary measures described in paragraph (b) of this section is sufficient to mitigate the risk that plant pests or noxious weeds could be introduced into or disseminated within the United States via the imported fruit or vegetable. In order for the Administrator to make the determination described in this paragraph, the risk analysis for the fruit or vegetable must find that the risk posed by each quarantine pest associated with the fruit or vegetable in the country or other region of origin is mitigated by one or more of the following factors: (1) Inspection. A quarantine pest is associated with the commodity in the country or region of origin, but the pest can be easily detected via inspection; (2) Pest freedom. No quarantine pests are known to be associated with the fruit or vegetable in the country or region of origin, or a quarantine pest is associated with the commodity in the country or region of origin but the commodity originates from an area in the country or region that meets the requirements of Sec. 319.56-5 for freedom from that pest; (3) Effectiveness of treatment. A quarantine pest is associated with the fruit or vegetable in the country or region of origin, but the risk posed by the pest can be reduced by applying an approved post- harvest treatment to the fruit or vegetable. (4) Pre-export inspection. A quarantine pest is associated with the commodity in the country or region of origin, but the commodity is subject to pre-export inspection, and the commodity is to be accompanied by a phytosanitary certificate that contains an additional declaration that the commodity has been inspected and found free of such pests in the country or region of origin. (ii) Issuance of import permits. The Administrator announced in a subsequent Federal Register notice that APHIS would begin issuing permits for importation of the fruit or vegetable subject to requirements specified in the notice because: (A) No comments were received on the pest risk analysis; (B) The comments on the pest risk analysis revealed that no changes to the pest risk analysis were necessary; or (C) Changes to the pest risk analysis were made in response to public comments, but the changes did not affect the overall conclusions of the analysis and the Administrator's determination of risk. (d) Amendment of import requirements. If, after [effective date of final rule] the Administrator determines that one or more of the designated phytosanitary measures is not sufficient to mitigate the risk posed by any of the fruits and vegetables that are authorized importation into the United States under this section, APHIS may prohibit or further restrict importation of the fruit or vegetable and publish a notice in the Federal Register advising the public of its finding. The notice will specify the amended import requirements, provide an effective date for the change, and will invite public comment on the subject. Sec. 319.56-5 Pest-free areas. As provided elsewhere in this subpart, certain fruits and vegetables may be imported into the United States provided that the fruits or vegetables originate from an area that is free of a specific pest or pests. In some cases, fruits or vegetables may only be imported if the area of export is free of all quarantine pests that attack the fruit or vegetable. In other cases, fruits and vegetables may be imported if the area of export is free of one or more quarantine pests that attack the fruit or vegetable, and provided that the risk posed by the remaining quarantine pests that attack the fruit or vegetable is mitigated by other specific phytosanitary measures contained in the regulations in this subpart. (a) Application of international standard for pest free areas. APHIS requires that determinations of pest-free areas be made in accordance with the criteria for establishing freedom from pests found in International Standard for Phytosanitary Measures No. 4, ``Requirements for the establishment of pest free areas.'' The international standard was established by the International Plant Protection Convention of the United Nations' Food and Agriculture Organization and is incorporated by reference in Sec. 300.6 of this chapter. (b) Survey protocols. APHIS must approve the survey protocol used to determine and maintain pest-free status, as well protocols for actions to be performed upon detection of a pest. Pest-free areas are subject to audit by APHIS to verify their status. (c) Determination of pest freedom. For an area to be considered free of a specified pest for the purposes of this subpart, the Administrator must determine, and announce in a notice or rule published in the Federal Register, that the area meets the criteria of paragraphs (a) and (b) of this section. (d) Decertification of pest-free areas; reinstatement. If a pest is detected in an area that is designated as free of that pest, APHIS would publish in the Federal Register a notice announcing that the pest-free status of the area in question has been withdrawn, and that imports of host crops for the pest in question are subject to application of an approved treatment for the pest. If a treatment for the pest is not available, the host crops would be prohibited importation. In order for a decertified pest-free area to be reinstated, it would have to meet the criteria of paragraphs (a) and (b) of this section. (e) General requirements for fruits and vegetables imported from pest-free areas. (1) Labeling. Each box of fruits or vegetables that is imported into the United States from a pest-free area under this subpart must be clearly labeled with: [[Page 25037]] (i) The name of the orchard or grove of origin, or the name of the grower; and (ii) The name of the municipality and State in which the fruits or vegetables were produced; and (iii) The type and amount of fruit the box contains. (2) Phytosanitary certificate. A phytosanitary certificate must accompany the imported fruits or vegetables, and must contain an additional declaration that the fruits originate from a pest-free area that meets the requirements of paragraphs (a) and (b) of this section. (3) Safeguarding. If fruits or vegetables are moved from a pest- free area into or through an area that is not free of that pest, the fruits or vegetables must be safeguarded during the time they are present in a non-pest-free area by being covered with insect-proof mesh screens or plastic tarpaulins, including while in transit to the packing house and while awaiting packaging. If fruits or vegetables are moved through an area that is not free of that pest during transit to a port, they must be packed in insect-proof cartons or containers or be covered by insect-proof mesh or plastic tarpaulins during transit to the port and subsequent export to the United States. These safeguards described in this section must be intact upon arrival in the United States. Sec. 319.56-6 Trust fund agreements. If APHIS personnel need to be physically present in an exporting country or region to facilitate the exportation of fruits or vegetables and APHIS services are to be funded by the national plant protection organization of the exporting country or a private export group, then the national plant protection organization or the private export group must enter into a trust fund agreement with APHIS that is in effect at the time the fruits or vegetables are exported. Under the agreement, the national plant protection organization of the exporting country or the private export group must pay in advance all estimated costs that APHIS expects to incur in providing inspection services in the exporting country. These costs will include administrative expenses incurred in conducting the services and all salaries (including overtime and the Federal share of employee benefits), travel expenses (including per diem expenses), and other incidental expenses incurred by the inspectors in performing services. The agreement must require the national plant protection organization of the exporting country or region or a private export group to deposit a certified or cashier's check with APHIS for the amount of those costs, as estimated by APHIS. The agreement must further specify that, if the deposit is not sufficient to meet all costs incurred by APHIS, the national plant protection organization of the exporting country or a private export group must deposit with APHIS, before the services will be completed, a certified or cashier's check for the amount of the remaining costs, as determined by APHIS. After a final audit at the conclusion of each shipping season, any overpayment of funds would be returned to the national plant protection organization of the exporting country or region or a private export group, or held on account. Sec. 319.56-7 Territorial applicability and exceptions. (a) The regulations in this subpart apply to importations of fruits and vegetables into any area of the United States, except as provided in this section. (b) Importations of fruits and vegetables into Guam. (1) The following fruits and vegetables may be imported into Guam without treatment, except as may be required under Sec. 319.56-3(d), and in accordance with all the requirements of this subpart as modified by this section: (i) All leafy vegetables and root crops from the Bonin Islands, Volcano Islands, and Ryukyu Islands. (ii) All fruits and vegetables from Palau and the Federated States of Micronesia (FSM), except Artocarpus spp. (breadfruit, jackfruit, and chempedak), citrus, curacao apple, guava, Malay or mountain apple (Syzygium spp.), mango, and papaya, and except dasheen from the Yap district of FSM and from Palau, and bitter melon (Momordica charantia) from Palau. The excepted products are approved for entry into Guam after treatment with an approved treatment listed in part 305. (iii) Allium (without tops), artichokes, bananas, bell peppers, cabbage, carrots, celery, Chinese cabbage, citrus fruits, eggplant, grapes, lettuce, melons, okra, parsley, peas, persimmons, potatoes, rhubarb, squash (Cucurbita maxima), stone and pome fruits, string beans, sweet potatoes, tomatoes, turnip greens, turnips, and watermelons from Japan and Korea. (iv) Leafy vegetables, celery, and potatoes from the Philippine Islands. (v) Carrots (without tops), celery, lettuce, peas, potatoes, and radishes (without tops) from Australia. (vi) Arrowroot, asparagus, bean sprouts, broccoli, cabbage, carrots (without tops), cassava, cauliflower, celery, chives, cow-cabbage, dasheen, garlic, gingerroot, horseradish, kale, kudzu, leek, lettuce, onions, Portuguese cabbage, turnip, udo, water chestnut, watercress, waterlily root, and yam bean root from Taiwan. (vii) Lettuce from Papua New Guinea. (viii) Carrots (without tops), celery, lettuce, loquats, onions, persimmons, potatoes, tomatoes, and stone fruits from New Zealand. (ix) Asparagus, carrots (without tops), celery, lettuce, and radishes (without tops) from Thailand. (x) Green corn on the cob. (xi) All other fruits and vegetables approved for entry into any other part or port of the United States, and except any which are specifically designated in this subpart as not approved. (2) An inspector in Guam may accept an oral application and issue an oral permit for products listed in paragraph (a) of this section, which is deemed to fulfill the requirements of Sec. 319.56-3(b) of this subpart. The inspector may waive the documentation required in Sec. 319.56-3 for such products whenever the inspector finds that information available from other sources meets the requirements under this subpart for the information normally supplied by such documentation. (3) The provisions of Sec. 319.56-11 do not apply to chestnuts and acorns imported into Guam, which are enterable into Guam without permit or other restriction under this subpart. If chestnuts or acorns imported under this paragraph are found infected, infested, or contaminated with any plant pest and are not subject to disposal under this subpart, disposition may be made in accordance with Sec. 330.106 of this chapter. (4) Baskets or other containers made of coconut fronds are not approved for use as containers for fruits and vegetables imported into Guam. Fruits and vegetables in such baskets or containers offered for importation into Guam will not be regarded as meeting Sec. 319.56- 3(a). (c) Importation of fruits and vegetables into the U.S. Virgin Islands. (1) Fruits and vegetables grown in the British Virgin Islands may be imported into the U.S. Virgin Islands in accordance with Sec. 319.56-3 of this subpart, except that: (i) Such fruits and vegetables are exempt from the permit requirements of Sec. 319.56-3(b); and (ii) Mangoes grown in the British Virgin Islands are prohibited entry into the U.S. Virgin Islands. (2) Okra produced in the West Indies may be imported into the U.S. Virgin Islands without treatment but are [[Page 25038]] subject to inspection at the port of arrival. Sec. Sec. 319.56-8 through 319.56-9 [Reserved] Sec. 319.56-10 Importation of fruits and vegetables from Canada. Fruits and vegetables grown in Canada may be imported into the United States subject to applicable requirements in Sec. 319.56-3, except that, in accordance with Sec. 319.37-2 of this part, potatoes from Newfoundland and that portion of the Municipality of Central Saanich in the Province of British Columbia east of the West Saanich Road may not be imported into the United States. Sec. 319.56-11 Importation of dried, cured, or processed fruits, vegetables, nuts, and legumes. (a) Dried, cured, or processed fruits and vegetables (except frozen fruits and vegetables), including cured figs and dates, raisins, nuts, and dried beans and peas, may be imported without permit, phytosanitary certificate, or other compliance with this subpart, except as specifically provided otherwise in this section or elsewhere in this part. (b) Acorns and chestnuts. (1) From countries other than Canada and Mexico; treatment required. Acorns and chestnuts intended for purposes other than propagation, except those grown in and shipped from Canada and Mexico, must be imported into the United States under permit, and subject to all the requirements of Sec. 319.56-3, and must be treated with an approved treatment listed in part 305 of this chapter.\2\ --------------------------------------------------------------------------- \2\ Acorns and chestnuts imported into Guam are subject to the requirements of Sec. 319.56-7(b). --------------------------------------------------------------------------- (2) From Canada and Mexico. Acorns and chestnuts grown in and shipped from Canada and Mexico for purposes other than propagation may be imported in accordance with paragraph (a) of this section. (3) For propagation. Acorns and chestnuts from any country may be imported for propagation only in accordance with the applicable requirements in Sec. Sec. 319.37 through 319.37-14 of this part. (c) Macadamia nuts. Macadamia nuts in the husk or shell are prohibited importation into the United States unless the macadamia nuts were produced in, and imported from, St. Eustatius. Sec. 319.56-12 Importation of frozen fruits and vegetables. Frozen fruits and vegetables may be imported into the United States in accordance with Sec. 319.56-3. Such fruits and vegetables must be held at a temperature not higher than 20 [deg]F during shipping and upon arrival in the United States, and in accordance with the requirements for importing frozen fruits and vegetables in part 305 of this chapter. The importation from foreign countries of frozen fruits and vegetables is not authorized when such fruits and vegetables are subject to attack in the area of origin by plant pests that may not, in the judgment of the Administrator, be destroyed by quick freezing. Sec. 319.56-13 Fruits and vegetables allowed importation subject to specified conditions. (a) The following fruits and vegetables may be imported in accordance with Sec. 319.56-3 and any additional requirements specified in this section. -------------------------------------------------------------------------------------------------------------------------------------------------------- Country/locality of origin Common name Botanical name Plant part(s) Additional requirements -------------------------------------------------------------------------------------------------------------------------------------------------------- Algeria........................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Angola............................ Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Antigua and Barbuda............... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Argentina......................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Australia (Tasmania only)......... Cucurbit............. As defined in 319.56-2.... Fruit................ (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Austria........................... Asparagus, white..... Asparagus officinalis..... Shoot................ (b)(4)(iii). Bahamas........................... Cucurbit............. As defined in 319.56-2.... Fruit................ (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Barbados.......................... Cucurbit............. As defined in 319.56-2.... Fruit................ (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Belgium........................... Apricot.............. Prunus armeniaca.......... Fruit................ (b)(5)(xiv). Cucumber............. Cucumis sativus........... Fruit................ (b)(3). Fig.................. Ficus carica.............. Fruit................ (b)(5)(xiv). Nectarine............ Prunus persica var. Fruit................ (b)(5)(xiv). nucipersica. Peach................ Prunus persica............ Fruit................ (b)(5)(xiv). Plum................. Prunus domestica.......... Fruit................ (b)(5)(xiv). Belize............................ Eggplant............. Solanum melongena......... Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(1)(i), (b)(2)(iii). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Rambutan............. Nephelium lappaceum....... Fruit................ (b)(2)(i), (b)(5)(iii). Tomato............... Lycopersicon esculentum... Fruit................ (b)(3). Benin............................. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Bolivia........................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Brazil............................ Cantaloupe........... Cucumis melo var. Fruit................ (b)(1)(v), (b)(3). cantaloupensis. Cassava.............. Manihot esculenta......... Fruit................ (b)(2)(vii). Honeydew melon....... Cucumis melo.............. Fruit................ (b)(1)(v), (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Watermelon........... Citrullus lanatus var. Fruit................ (b)(1)(v), (b)(3). lanatus. Burkina Faso...................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Cameroon.......................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Cayman Islands.................... Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Chile............................. African horned Cucumis metuliferus....... Fruit................ (b)(2)(i). cucumber. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). [[Page 25039]] China............................. Litchi............... Litchi chinensis.......... Fruit................ (b)(2)(v). Columbia.......................... Eggplant............. Solanum melongena......... Fruit................ (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Yellow pitaya........ Selinicereus megalanthus.. Fruit................ (b)(5)(xvi). Congo, Democratic Republic of..... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Cook Islands...................... Ginger............... Zingiber officinalis...... Root................. (b)(2)(ii). Banana............... Musa spp.................. Fruit................ (b)(4)(i). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi), (b)(5)(vii). Costa Rica........................ Cucurbit............. Cucurbitaceae............. Fruit................ (b)(2)(iii), (b)(3). Eggplant............. Solanum melongena......... Fruit................ (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Rambutan............. Nephelium lappaceum....... Fruit................ (b)(2)(i), (b)(5)(iii). Tomato............... Lycopersicon esculentum... Fruit................ (b)(3). Cote d'Ivoire..................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Cyprus............................ Lemon................ Citrus limon.............. Fruit................ (b)(3). Lime................. Citrus aurantiifolia and Fruit................ (b)(3). Citrus limettioides. Tomato............... Lycopersicon esculentum... Fruit................ (b)(3). Dominica.......................... Grapefruit........... Citrus paradisi........... Fruit................ (b)(3). Orange, sweet........ Citrus sinensis........... Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Tangerine............ Citrus reticulata......... Fruit................ (b)(3). Dominican Republic................ Cucurbit............. Cucurbitaceae............. Fruit................ (b)(2)(iii), (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(iii), (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(iii), (b)(2)(vi). Ethrog............... Citrus medica............. Fruit................ (b)(3). Honeydew melon....... Cucumis melo.............. Fruit................ (b)(3). Ecuador........................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(iii), (b)(2)(vi). Egypt............................. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). El Salvador....................... Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Eggplant............. Solanum melongena......... Fruit with stem...... (b)(3). Fennel............... Foeniculum vulgare........ Leaf and stem........ (b)(2)(i). German chamomile..... Matricaria recutita and Flower and leaf...... (b)(2)(i). Matricaria chamomilla. Oregano or sweet Origanum spp.............. Leaf and stem........ (b)(2)(i). marjoram. Parsley.............. Petroselinum crispum...... Leaf and stem........ (b)(2)(i). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Rambutan............. Nephelium lappaceum....... Fruit................ (b)(2)(i), (b)(5)(iii). Rosemary............. Rosmarinus officinalis.... Leaf and stem........ (b)(2)(i). Tomato............... Lycopersicon esculentum... Fruit................ (b)(3). Waterlily or lotus... Nelumbo nucifera.......... Roots without soil... (b)(2)(i). Yam-bean or Jicama... Pachyrhizus spp........... Roots without soil... (b)(2)(i). Fiji.............................. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi), (b)(5)(vii). France............................ Bean................. Glycine max (Soybean); Fruit................ (b)(5)(xiii). Phaseolus coccineus, (Scarlet or french runner bean); Phaseolus lunatus (lima bean); Phaseolus vulgaris (green bean, kidney bean, navy bean, pinto bean, red bean, string bean, white bean); Vicia faba (faba bean, broadbean, haba, habichuela, horsebean, silkworm bean, windsor bean; Vigna radiata (mung bean); Vigna unguiculata (includes: ssp. cylindrica, ssp. dekintiana, ssp. sesquipedalis (yard-long bean, asparagus bean, long bean) ssp. unguiculata (southern pea, black-eyed bean, black-eyed pea, cowpea, crowder pea)). Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Tomato............... Lycopersicon esculentum... Fruit, stem and leaf. (b)(4)(ii). French Guiana..................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). French Polynesia, including Tahiti Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi), (b)(5)(vii). Ghana............................. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Greece............................ Tomato............... Lycopersicon esculentum... Fruit................ (b)(3). Grenada........................... Atemoya.............. Annona squamosa x A. Fruit................ (b)(3). cherimola. Cherimoya............ Annona cherimola.......... Fruit................ (b)(3). Custard apple........ Annona reticulata......... Fruit................ (b)(3). Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). [[Page 25040]] Soursop.............. Annona muricata........... Fruit................ (b)(3). Sugar apple.......... Annona squamosa........... Fruit................ (b)(3). Guadeloupe........................ Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Guatemala......................... Cucurbit............. Cucurbitaceae............. Fruit................ (b)(2)(iii), (b)(3). Eggplant............. Solanum melongena......... Fruit................ (b)(3). Fennel............... Foeniculum vulgare........ Leaf and stem........ (b)(2)(i). German chamomile..... Matricaria recutita and Flower and leaf...... (b)(2)(i). Matricaria chamomilla. Naranjilla........... Solanum quitoense......... Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(1)(i), (b)(2)(iii). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Rambutan............. Nephelium lappaceum....... Fruit................ (b)(2)(i), (b)(5)(iii). Rosemary............. Rosmarinus officinalis.... Leaf and stem........ (b)(2)(i). Tomato............... Lycopersicon esculentum... Fruit................ (b)(3), (b)(4)(ii). Waterlily or lotus... Nelumbo nucifera.......... Roots without soil... (b)(2)(i). Yam-bean or jicama... Pachyrhizus spp........... Roots without soil... (b)(2)(i). Guinea............................ Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Guyana............................ Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Haiti............................. Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Honduras.......................... Basil................ Ocimum basilicum.......... Leaf and stem........ (b)(2)(i), (b)(5)(iv). Cucurbit............. Cucurbitaceae............. Fruit................ (b)(2)(iii), (b)(3). Eggplant............. Solanum melongena......... Fruit................ (b)(3). German chamomile..... Matricaria recutita and Flower and leaf...... (b)(2)(i). Matricaria chamomilla. Oregano or sweet Origanum spp.............. Leaf and stem........ (b)(2)(i). marjoram. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Rambutan............. Nephelium lappaceum....... Fruit................ (b)(2)(i), (b)(5)(iii). Tomato............... Lycopersicon esculentum... Fruit................ (b)(3), (b)(4)(ii). Waterlily or lotus... Nelumbo nucifera.......... Roots without soil... (b)(2)(i). Yam-bean or Jicama... Pachyrhizus spp........... Roots without soil... (b)(2)(i). India............................. Litchi............... Litchi chinensis.......... Fruit................ (b)(2)(v). Indonesia......................... Dasheen.............. Colocasia spp., Alocasia Tuber................ (b)(2)(iv). spp., and Xanthosoma spp. Israel............................ Melon................ Cucumis melo only......... Fruit................ (b)(5)(viii). Tomato (green)....... Lycopersicon esculentum... Fruit................ (b)(3), (b)(4)(ii) or (b)(3), (b)(5)(xvii). Tomato (red or pink). Lycopersicon esculentum... Fruit................ (b)(3), (b)(5)(ix) or (b)(3), (b)(5)(xvii). Italy............................. Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Garlic............... Allium sativum............ Bulb................. (b)(5)(iv).\1\ Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Tomato............... Lycopersicon esculentum... Fruit................ (b)(3), (b)(4)(ii). Jamaica........................... Cucurbit............. Cucurbitaceae............. Fruit................ (b)(2)(iii), (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(iii), (b)(2)(iv), (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Japan............................. Bean (garden)........ Phaseolus vulgaris........ Fruit................ (b)(2)(x), (b)(5)(xiv). Cucumber............. Cucumis sativas........... Fruit................ (b)(2)(x), (b)(5)(xv). Pepper............... Capsicum spp.............. Fruit................ (b)(2)(x), (b)(5)(xiv). Sand pear............ Pyrus pyrifolia var. culta Fruit................ (b)(5)(x). Tomato............... Lycopersicon esculentum... Fruit................ (b)(2)(x), (b)(5)(xv). Kenya............................. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Liberia........................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Mali.............................. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Martinique........................ Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Mauritania........................ Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Mexico............................ Coconut.............. Cocos nucifera............ Fruit with milk and (b)(5)(v). husk.\2\ Fig.................. Ficus carica.............. Fruit................ (b)(1)(iii), (b)(2)(i). Pitaya............... Hylocereus spp............ Fruit................ (b)(1)(iv), (b)(2)(i). Rambutan............. Nephelium lappaceum....... Fruit................ (b)(2)(i), (b)(5)(iii). Montserrat........................ Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Morocco........................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Morocco and Western Sahara........ Tomato............... Lycopersicon esculentum... Fruit, stem, and leaf (b)(4)(ii). [[Page 25041]] Netherlands....................... Cucurbit............. Cucurbitaceae............. Fruit................ (b)(2)(iii), (b)(3). Peach................ Prunus persica............ Fruit................ (b)(5)(xiv). Pepper............... Capsicum spp.............. Fruit................ (b)(5)(xi). Netherlands Antilles.............. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). New Zealand....................... Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Passion fruit........ Passiflora spp............ Fruit................ (b)(2)(vi). Nicaragua......................... Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3). Eggplant............. Solanum melongena......... Fruit with stem...... (b)(3). Fennel............... Foeniculum vulgare........ Leaf and stem........ (b)(2)(i). German chamomile..... Matricaria recutita and Flower and leaf...... (b)(2)(i). Matricaria chamomilla. Naranjilla........... Solanum quitoense......... Fruit................ (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Rambutan............. Nephelium lappaceum....... Fruit................ (b)(2)(i), (b)(5)(iii). Tomato............... Lycopersicon esculentum... Fruit................ (b)(3), (b)(4)(ii). Waterlily or lotus... Nelumbo nucifera.......... Roots without soil... (b)(2)(i). Yam-bean or Jicama... Pachyrhizus spp........... Roots without soil... (b)(2)(i). Niger............................. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Nigeria........................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Panama............................ Cucurbit............. As defined in 319.56-2.... Fruit................ (b)(2)(iii), (b)(3). Eggplant............. Solanum melongena......... Fruit................ (b)(3). Rambutan............. Nephelium lappaceum....... Fruit................ (b)(2)(i), (b)(5)(iii). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Tomato............... Lycopersicon esculentum... Fruit................ (b)(3), (b)(4)(ii). Paraguay.......................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Peru.............................. Honeydew melon....... Cucumis melo.............. Fruit................ (b)(1)(v), (b)(2)(i), (b)(3), (b)(5)(xii). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Philippines....................... Pineapple............ Ananas comosus............ Fruit................ (b)(5)(vii). Portugal (including Azores)....... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Portugal (Azores only)............ Tomato............... Lycopersicon esculentum... Fruit................ (b)(3), (b)(4)(ii). Republic of Korea................. Dasheen.............. Colocasia spp., Alocasia Root................. (b)(2)(iv). spp., and Xanthosoma spp. Sand pear............ Pyrus pyrifolia var. culta Fruit................ (b)(5)(x). Strawberry........... Fragaria spp.............. Fruit................ (b)(5)(ii). St. Kitts and Nevis............... Cucurbit............. As defined in 319.56-2.... Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). St. Lucia......................... Cucurbit............. As defined in 319.56-2.... Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). St. Martin........................ Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Barbados cherry...... Malpighia glabra.......... Fruit................ (b)(2)(vi). St. Vincent....................... Cucurbit............. As defined in 319.56-2.... Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Senegal........................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Sierra Leone...................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). South Africa...................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Spain............................. Cucumber............. Cucumis sativus........... Fruit................ (b)(3). Cucurbit............. Cucurbitaceae............. Above ground parts... (b)(3). Eggplant............. Solanum melongena......... Fruit with stem...... (b)(3). Garlic............... Allium sativum............ Bulb................. (b)(5)(vi).\1\ Lemon................ Citrus limon.............. Fruit................ (b)(3). Lettuce.............. Lactuca spp............... Above ground parts... (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Tomato............... Lycopersicon esculentum... Fruit................ (b)(4)(ii). Watermelon........... Citrullus lanatus var. Fruit................ (b)(3). lanatus. Sri Lanka......................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi), (b)(5)(vii). Taiwan............................ Brassica............. Brassica oleracea......... Above ground parts... (b)(2)(viii). Carambola............ Averrhoa carambola........ Fruit................ (b)(2)(ix), (b)(5)(xviii). Litchi............... Litchi chinensis.......... Fruit................ (b)(2)(v). Thailand.......................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi), (b)(5)(vii). Togo.............................. Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Trinidad and Tobago............... Cassava.............. Manihot exculenta......... Fruit................ (b)(2)(vi). Cucurbit............. Cucurbitaceae............. Above ground parts... (b)(2)(iii), (b)(3). Eggplant............. Solanum melongena......... Fruit................ (b)(3). Cucurbit............. Cucurbitaceae............. Fruit................ (b)(3) Lime, sour........... Citrus aurantiifolia...... Fruit................ (b)(3). Papaya............... Carica papaya............. Fruit................ (b)(2)(vi). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). [[Page 25042]] Tunisia........................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Turkey............................ Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Uruguay........................... Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Venezuela......................... Cantaloupe........... Cucumis melo var. Fruit................ (b)(1)(v), (b)(3). cantaloupensis. Honeydew melon....... Cucumis melo.............. Fruit................ (b)(1)(v), (b)(3). Pineapple............ Ananas comosus............ Fruit................ (b)(2)(vi). Watermelon........... Citrullus lanatus var. Fruit................ (b)(1)(v), (b)(3). lanatus. -------------------------------------------------------------------------------------------------------------------------------------------------------- \1\ Also eligible for importation if treated with an approved treatment listed in part 305 of this chapter. \2\ Fruit without husk may be imported subject to the requirements of Sec. 319.56-5. (b) Additional restrictions for applicable fruits and vegetables as specified in paragraph (a) of this section. (1) Pest-free areas. (i) The commodity must be from an area that meets the requirements of Sec. 319.56-5 for freedom from the Mediterranean fruit fly (Medfly), and must meet applicable requirements of Sec. 319.56-5. (ii) The commodity must be from an area that meets the requirements of Sec. 319.56-5 for freedom from the Mediterranean fruit fly (Medfly), and must meet applicable requirements of Sec. 319.56-5. Fruit from outside Medfly-free areas must be treated in accordance with an approved treatment listed in part 305 of this chapter. (iii) The commodity must be from an area that meets the requirements of Sec. 319.56-5 for freedom from fruit flies, and must meet applicable requirements of Sec. 319.56-5. (iv) The commodity must be from an area that meets the requirements of Sec. 319.56-5 for freedom from fruit flies, and must meet applicable requirements of Sec. 319.56-5. The phytosanitary certificate must also include an additional declaration stating: ``Upon inspection, these articles were found free of Dysmicoccus neobrevipes and Planococcus minor.'' (v) The commodity must be from an area that meets the requirements of Sec. 319.56-5 for freedom from the South American cucurbit fly, and must meet applicable requirements of Sec. 319.56-5. (2) Restricted importation and distribution. (i) Prohibited entry into Puerto Rico, Virgin Islands, Hawaii, and Guam. Cartons in which commodity is packed must be stamped ``Not for importation into or distribution within PR, VI, HI, or Guam.'' (ii) Prohibited entry into Puerto Rico, Virgin Islands, and Guam. Cartons in which commodity is packed must be stamped ``Not for importation into or distribution within PR, VI, or Guam.'' (iii) Prohibited entry into Hawaii. Cartons in which commodity is packed must be stamped ``Not for importation into or distribution within HI.'' (iv) Prohibited entry into Guam. Cartons in which commodity is packed must be stamped ``Not for importation into or distribution within Guam.'' (v) Prohibited entry into Florida. Cartons in which commodity is packed must be stamped ``Not for importation into or distribution within FL.'' (vi) Prohibited entry into Hawaii. (vii) Prohibited entry into Puerto Rico, Virgin Islands, and Hawaii. (viii) Prohibited entry into Alaska. (ix) Prohibited entry into Florida. (x) Allowed importation into Hawaii only. (3) Commercial shipments only. (4) Stage of development. (i) The bananas must be green at the time of export. Inspectors at the port of arrival will determine that the bananas were green at the time of export if: (1) Bananas shipped by air are still green upon arrival in the United States; and (2) bananas shipped by sea are either still green upon arrival in the United States or yellow but firm. (ii) The tomatoes must be green upon arrival in the United States. Pink or red fruit may only be imported in accordance with other provisions of Sec. 319.56-13 or Sec. 319.56-28 of this subpart. (iii) No green may be visible on the shoot. (5) Other conditions. (i) Must be accompanied by a phytosanitary certificate issued by the NPPO of the country of origin with an additional declaration stating that the commodity is apparently free of Acrolepiopsis assectella. (ii) Entry permitted only from September 15 to May 31, inclusive, to prevent the introduction of a complex of exotic pests including, but not limited to a thrips (Haplothrips chinensis) and a leafroller (Capua tortrix). (iii) Must be accompanied by a phytosanitary certificate issued by the NPPO of the country of origin with an additional declaration stating that the fruit is free from Coccus moestus, C. viridis, Dysmicoccus neobrevipes, Planococcus lilacinus, P. minor, and Psedococcus landoi; and all damaged fruit was removed from the shipment prior to export under the supervision of the NPPO. (iv) Must be accompanied by a phytosanitary certificate issued by the NPPO of the country of origin with an additional declaration stating that the fruit is free from Planococcus minor. (v) Must be accompanied by a phytosanitary certificate issued by the NPPO of the country of origin with an additional declaration stating that the fruit is of the Malayan dwarf variety or Maypan variety (=F1 hybrid, Malayan Dwarf x Panama Tall) (which are resistant to lethal yellowing disease) based on verification of the parent stock. (vi) Must be accompanied by a phytosanitary certificate issued by the NPPO of the country of origin with an additional declaration stating that the commodity is free of living stages of Brachycerus spp. and Dyspessa ulula (Bkh.), based on field inspection and certification and reexamination at the port of departure prior to exportation. (vii) Only the Tahiti Queen cultivar and varieties which are at least 50 percent smooth Cayenne by lineage are admissible. The importer or the importer's agent must provide the inspector with documentation that establishes the variety's lineage. This document is necessary only with the first importation. (viii) Prohibited from the Palestinian controlled portions of the West Bank and Gaza Strip; otherwise, must be accompanied by a phytosanitary certificate which declares that the melons were grown in approved areas in the Arava Valley or the Kadesh-Barnea area of Israel, the fields where the melons were grown were inspected prior to harvest, and the melons were inspected prior to export and found free of pests. (ix) Prohibited from the Palestinian controlled portions of the West Bank and Gaza Strip; otherwise must be accompanied by a phytosanitary certificate which declares that only tomato varieties 111, 121, 124, 139, and 144 are included in the shipment and [[Page 25043]] the tomatoes were packed into fruit fly proof containers within 24 hours after harvesting. (x) Only precleared shipments are authorized. The shipment must be accompanied by a PPQ Form 203 signed by the APHIS inspector on site in the exporting country. (xi) Must be accompanied by a phytosanitary certificate stating: ``The peppers in this shipment have been inspected and verified as being grown in greenhouses in the Netherlands.'' (xii) Must be accompanied by a phytosanitary certificate issued by the National Plant Protection Organization of the exporting country that includes a declaration indicating that the fruit was inspected and found free of the gray pineapple mealybug (Dysmicoccus neobrevipes). (xiii) Must be accompanied by a phytosanitary certificate issued by the National Plant Protection Organization of the exporting country that includes a declaration certifying that the products were grown and packed in the exporting country. (xiv) Must be accompanied by a phytosanitary certificate issued by the National Plant Protection Organization of the exporting country that includes a declaration certifying that the products were grown in a greenhouse in the exporting country. (xv) Must be accompanied by a phytosanitary certificate issued by the National Plant Protection Organization of the exporting country that includes a declaration certifying that the products were grown in a greenhouse in the exporting country on Honshu Island or north thereof. (xvi) Only precleared shipments that have been treated with an approved treatment listed in 7 CFR part 305 are authorized. The shipment must be accompanied by a PPQ Form 203 signed by the APHIS inspector on site in the exporting country. (xvii) Must be accompanied by a phytosanitary certificate issued by the National Plant Protection Organization of Israel that declares ``These tomatoes were grown in registered greenhouses in the Arava Valley of Israel.'' (xviii) Must be treated with an approved treatment listed in 7 CFR part 305. Sec. Sec. 319.56-14 through 319.56-19 [Reserved] Sec. 319.56-20 Apples and pears from Australia (including Tasmania) and New Zealand. Apples and pears from Australia (including Tasmania) and New Zealand may be imported only in accordance with this section and other applicable provisions of this subpart. (a) Inspection and treatment for pests of the family Tortricidae. An inspector must take a biometrically designed sample from each lot of apples or pears that are offered for entry into the United States. If inspection of the sample discloses that pests of the family Tortricidae (fruit-leaf roller moths) are not present in the lot sampled, the fruit may be imported without treatment. If any such pests are found upon inspection, the lot must be treated with methyl bromide as prescribed in part 305 of this chapter. (b) Treatment of apples and pears from Australia for fruit flies. (1) Apples from Australia (including Tasmania) may be imported without treatment for the following fruit flies if they are imported from an area in Australia that meets the requirements of Sec. 319.56-5 for pest freedom: Mediterranean fruit fly (Ceratitis capitata), the Queensland fruit fly (Bactrocera tryoni), Bactrocera aquilonis, and B. neohumeralis. (2) Pears from Australia (including Tasmania) may be imported without treatment for the following fruit flies if they are imported from an area in Australia that meets the requirements of Sec. 319.56-5 for pest freedom: Mediterranean fruit fly (Ceratitis capitata), the Queensland fruit fly (Dacus tryoni), Bactrocera jarvisi, and B. neohumeralis. (3) Apples and pears from Australia that do not originate from an area that is free of fruit flies must be treated for such pests in accordance with part 305 of this chapter. If an authorized treatment does not exist for a specific fruit fly, the importation of such apples and pears is prohibited. Sec. 319.56-21 Okra from certain countries. Okra from Brazil, Colombia, Ecuador, Guyana, Mexico, Peru, Suriname, Venezuela, and the West Indies may be imported into the United States in accordance with this section and other applicable provisions of this subpart. (a) Importations into pink bollworm generally infested or suppressive areas in the United States. Okra may be imported into areas defined in Sec. 301.52-2a as pink bollworm generally infested or suppressive areas, provided the okra is imported in accordance with the requirements of Sec. 319.56-3. Upon entry into the United States, such okra is immediately subject to the requirements of Subpart--Pink Bollworm (Sec. Sec. 301.52 through 301.52-10) of this chapter. (b) Importations into areas south of the 38th parallel that are not pink bollworm generally infested or suppressive areas. (1) During December 1 through May 15, inclusive, okra may be imported into areas of Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, Nevada, North Carolina, South Carolina, Tennessee, or any part of Illinois, Kentucky, Missouri, or Virginia south of the 38th parallel subject to the requirements of Sec. 319.56-3. (2) During May 16 through November 30, inclusive, okra may be imported into areas of Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, Nevada, North Carolina, South Carolina, Tennessee, or any part of Illinois, Kentucky, Missouri, or Virginia south of the 38th parallel if treated for the pink bollworm in accordance with an approved treatment listed in part 305 of this chapter. (c) Importations into areas north of the 38th parallel. Okra may be imported into Alaska, Colorado, Connecticut, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, Washington, West Virginia, Wisconsin, Wyoming, the District of Columbia, or the U.S. Virgin Islands, or any part of Illinois, Kentucky, Missouri, or Virginia, north of the 38th parallel, subject to the requirements of Sec. 319.56-3. (d) Importations into areas of California that are not are not pink bollworm generally infested or suppressive areas. (1) During January 1 through March 15, inclusive, okra may be imported into California subject to the requirements of Sec. 319.56-3. (2) During March 16 through December 31, inclusive, okra may be imported into California if it is treated for the pink bollworm in accordance with an approved treatment listed in part 305 of this chapter. (e) Imports from Andros Island of the Bahamas. Okra produced on Andros Island, Commonwealth of the Bahamas, may be imported into the United States in accordance with Sec. 319.56-3. Sec. 319.56-22 Apples and pears from certain countries in Europe. (a) Importations allowed. The following fruits may be imported into the United States in accordance with this section and other applicable provisions of this subpart: (1) Apples from Belgium, Denmark, France, Germany, Great Britain, Italy, the Netherlands, Northern Ireland, Norway, Portugal, the Republic of Ireland, Spain, Sweden, and Switzerland; [[Page 25044]] (2) Pears from Belgium, France, Great Britain, Italy, the Netherlands, Portugal, and Spain. (b) Trust fund agreement. Except as provided in paragraph (h) of this section, the apples or pears may be imported only if the national plant protection organization of the exporting country has entered into a trust fund agreement with APHIS in accordance with Sec. 319.56-6. (c) Responsibilities of the exporting country. The apples or pears may be imported in any single shipping season only if all of the following conditions are met: (1) Officials of the plant protection organization must survey each orchard producing apples or pears for shipment to the United States at least twice between spring blossoming and harvest. If the officials find any leaf miners that suggest the presence of Leucoptera malifoliella in an orchard, the officials must reject any fruit harvested from that orchard during that growing season for shipment to the United States. If the officials find evidence in an orchard of any other plant pest referred to in paragraph (g) of this section, they must ensure that the orchard and all other orchards within 1 kilometer of that orchard will be treated for that pest with a pesticide approved by the APHIS, in accordance with label directions and under the direction of the plant protection organization. If the officials determine that the treatment program has not been applied as required or is not controlling the plant pest in the orchard, they must reject any fruit harvested from that orchard during that growing season for shipment to the United States. (2) The apples or pears must be identified to the orchard from which they are harvested (the producing orchard) until the fruit arrives in the United States. (3) The apples or pears must be processed and inspected in approved packing sheds as follows: (i) Upon arrival at the packing shed, the apples or pears must be inspected for insect pests as follows: For each grower lot (all fruit delivered for processing from a single orchard at a given time), packing shed technicians must examine all fruit in one carton on every third pallet (there are approximately 42 cartons to a pallet), or at least 80 apples or pears in every third bin (if the fruit is not in cartons on pallets). If they find any live larva or pupa of Leucoptera malifoliella, they must reject the entire grower lot for shipment to the United States, and the plant protection service must reject for shipment any additional fruit from the producing orchard for the remainder of the shipping season. (ii) The apples or pears must be sorted, sized, packed, and otherwise handled in the packing sheds on grading and packing lines used solely for fruit intended for shipment to the United States, or, if on grading and packing lines used previously for other fruit, only after the lines have been washed with water. (iii) During packing operations, apples and pears must be inspected for insect pests as follows: All fruit in each grower lot must be inspected at each of two inspection stations on the packing line by packing shed technicians. In addition, one carton from every pallet in each grower lot must be inspected by officials of the plant protection service. If the inspections reveal any live larva or pupa of Leucoptera malifoliella, the entire grower lot must be rejected for shipment to the United States, and the plant protection service must reject for shipment any additional fruit from the producing orchard for the remainder of that shipping season. If the inspections reveal any other insect pest referred to in paragraph (g) of this section, and a treatment authorized in part 305 of this chapter is available, the fruit will remain eligible for shipment to the United States if the entire grower lot is treated for the pest under the supervision of an inspector. However, if the entire grower lot is not treated in this manner, or if a plant pest is found for which no treatment authorized in part 305 of this chapter is available, the entire grower lot will be rejected for shipment to the United States. (4) Apples or pears that pass inspection at approved packing sheds must be presented to an inspector for preclearance inspection as prescribed in paragraph (d) of this section or for inspection in the United States as prescribed in paragraph (h) of this section. (5) Apples and pears presented for preclearance inspection must be identified with the packing shed where they were processed, as well as with the producing orchard, and this identity must be maintained until the apples or pears arrive in the United States. (6) Facilities for the preclearance inspections prescribed in paragraph (d) of this section must be provided in the exporting country at a site acceptable to APHIS. (7) Any apples or pears rejected for shipment into the United States may not, under any circumstance, be presented again for shipment to the United States. (d) Preclearance inspection. Preclearance inspection will be conducted in the exporting country by an inspector. Preclearance inspection will be conducted for a minimum of 6,000 cartons of apples or pears, which may represent multiple grower lots from different packing sheds. The cartons examined during any given preclearance inspection will be known as an inspection unit. Apples or pears in any inspection unit may be shipped to the United States only if the inspection unit passes inspection as follows: (1) Inspectors will examine, fruit by fruit, a biometrically designed statistical sample of 300 cartons drawn from each inspection unit. (i) If inspectors find any live larva or pupa of Leucoptera malifoliella, they will reject the entire inspection unit for shipment to the United States. The inspectors also will reject for shipment any additional fruit from the producing orchard for the remainder of the shipping season. However, other orchards represented in the rejected inspection unit will not be affected for the remainder of the shipping season because of that rejection. Additionally, if inspectors reject any three inspection units in a single shipping season because of Leucoptera malifoliella on fruit processed by a single packing shed, no additional fruit from that packing shed will be accepted for shipment to the United States for the remainder of that shipping season. (ii) If the inspectors find evidence of any other plant pest referred to in paragraph (g) of this section, and a treatment authorized in part 305 of this chapter is available, fruit in the inspection unit will remain eligible for shipment to the United States if the entire inspection unit is treated for the pest under the supervision of an inspector. However, if the entire inspectional unit is not treated in this manner, or if a plant pest is found for which no treatment authorized in part 305 of this chapter is available, the inspectors will reject the entire inspection unit for shipment to the United States. Rejection of an inspection unit because of pests other than Leucoptera malifoliella will not be cause for rejecting additional fruit from an orchard or packing shed. (iii) Apples and pears precleared for shipment to the United States as prescribed in this paragraph will not be inspected again in the United States (except as necessary to ensure that the fruit has been precleared) unless the preclearance program with the exporting country is terminated in accordance with paragraph (e) of this section. If the preclearance program is terminated with any country, precleared fruit in transit to the United States at the [[Page 25045]] time of termination will be spot-checked by inspectors upon arrival in the United States for evidence of plant pests referred to in paragraph (g) of this section. If any live larva or pupa of Leucoptera malifoliella is found in any carton of fruit, inspectors will reject that carton and all other cartons in that consignment that are from the same producing orchard. In addition, the remaining cartons of fruit in that consignment will be reinspected as an inspection unit in accordance with the preclearance procedures prescribed in paragraph (d) of this section. (2) [Reserved] (e) Termination of preclearance programs. The Administrator may terminate the preclearance program in a country if he or she determines that any of the conditions specified in paragraph (c) of this section are not met or because of pests found during preclearance inspections. Termination of the preclearance program will stop shipments of apples or pears from that country for the remainder of that shipping season. Termination of the preclearance program for findings of Leucoptera malifoliella in preclearance inspections in any country will be based on rates of rejection of inspection units as follows: (1) Termination because of findings of Leucoptera malifoliella. The pre-clearance program will be terminated with a country when, in one shipping season, inspection units are rejected because of Leucoptera malifoliella as follows: (i) Five inspection units in sequence among inspection units 1-20, or a total of 8 or more of the inspection units 1-20; (ii) Five inspection units in sequence among inspection units 21- 40, or a total of 10 or more of the inspection units 1-40; (iii) Five inspection units in sequence among inspection units 41- 60, or a total of 12 or more of the inspection units 1-60; (iv) Five inspection units in sequence among inspection units 61- 80, or a total of 14 or more of the inspection units 1-80; (v) Five inspection units in sequence among inspection units 81- 100, or a total of 16 or more of the inspection units 1-100; (vi) Five inspection units in sequence among inspection units 101- 120, or a total of 18 or more of the inspection units 1-120. (vii) Sequence can be continued in increments of 20 inspection units by increasing the number of rejected inspection units by 2. (2) Termination because of findings of other plant pests. The preclearance program will be terminated with a country when, in one shipping season, inspection units are rejected because of other insect pests as follows: (i) Ten or more of the inspection units 1-20; (ii) Fifteen or more of the inspection units 1-40; (iii) Twenty or more of the inspection units 1-60; (iv) Twenty-five or more of the inspection units 1-80; (v) Thirty or more of the inspection units 1-100; or (vi) Thirty-five or more of the inspection units 1-120. (vii) Sequence can be continued in increments of 20 inspection units by increasing the number of rejected inspection units by 5. (f) Cold treatment. In addition to all other requirements of this section, apples or pears may be imported into the United States from France, Italy, Portugal, or Spain only if the fruit is cold treated for the Mediterranean fruit fly in accordance with part 305 of this chapter. (g) Plant pests; authorized treatments. (1) Apples from Belgium, Denmark, France, Great Britain, Italy, the Netherlands, Northern Ireland, Norway, Portugal, the Republic of Ireland, Spain, Sweden, Switzerland, and Germany; and pears from Belgium, France, Great Britain, Italy, the Netherlands, Portugal, and Spain may be imported into the United States only if they are found free of the following pests or, if an authorized treatment is available, they are treated for: The pear leaf blister moth (Leucoptera malifoliella (O.G. Costa) (Lyonetiidae)), the plum fruit moth (Cydia funebrana (Treitschke) (Tortricidae)), the summer fruit tortrix moth (Adoxophyes orana (Fischer von Rosslertamm) (Tortricidae)), a leaf roller (Argyrotaenia pulchellana (Haworth) (Tortricidae)), and other insect pests that do not exist in the United States or that are not widespread in the United States. (2) Authorized treatments are listed in part 305 of this chapter. (h) Inspection in the United States. Notwithstanding provisions to the contrary in paragraphs (c) and (d) of this section, the Administrator may allow apples or pears imported under this section to be inspected at a port of arrival in the United States, in lieu of a preclearance inspection, under the following conditions: (1) The Administrator has determined that inspection can be accomplished at the port of arrival without increasing the risk of introducing insect pests into the United States; (2) Each pallet of apples or pears must be completely enclosed in plastic, to prevent the escape of insects, before it is offloaded at the port of arrival; (3) The entire consignment of apples or pears must be offloaded and moved to an enclosed warehouse, where adequate inspection facilities are available, under the supervision of an inspector. (4) The Administrator must determine that a sufficient number of inspectors are available at the port of arrival to perform the services required. (5) The method of inspection will be the same as prescribed in paragraph (d) of this section for preclearance inspections. Sec. 319.56-23 Apricots, nectarines, peaches, plumcot, and plums from Chile. (a) Importations allowed. Apricots, nectarines, peaches, plumcot, and plums may be imported into the United States from Chile in accordance with this section and other applicable provisions of this subpart.\3\ --------------------------------------------------------------------------- \3\ As provided in Sec. 319.56-4, apricots, nectarines, peaches, plumcot, and plums Chile may also be imported if treated in accordance with a treatment listed in part 305 of this chapter and subject to other applicable regulations in this subpart. --------------------------------------------------------------------------- (b) Trust fund agreement. Apricots, nectarines, peaches, plumcot, and plums may be imported under the regulations in this section only if the plant protection service of Chile (Servicio Agricola y Ganadero, referred to in this section as SAG), has entered into a trust fund agreement with APHIS in accordance with Sec. 319.56-6. (c) Responsibilities of Servicio Agricola y Ganadero. SAG will ensure that: (1) Apricots, nectarines, peaches, plumcot, or plums are presented to inspectors for preclearance in their shipping containers at the shipping site as prescribed in paragraph (d) of this section. (2) Apricots, nectarines, peaches, plumcot, and plums presented for inspection are identified in shipping documents accompanying each load of fruit that identify the packing shed where they were processed and the orchards where they were produced; and this identity is maintained until the apricots, nectarines, peaches, plumcot, or plums are released for entry into the United States. (3) Facilities for the inspections prescribed in paragraph (d) of this section are provided in Chile at an inspection site acceptable to APHIS. (d) Preclearance inspection. Preclearance inspection will be [[Page 25046]] conducted in Chile under the direction of inspectors. An inspection unit will consist of a lot or consignment from which a statistical sample is drawn and examined. An inspection unit may represent multiple grower lots from different packing sheds. Apricots, nectarines, peaches, plumcot, or plums in any inspection unit may be shipped to the United Sates only if the inspection unit passes inspection as follows: (1) Inspectors will examine the contents of the cartons based on a biometric sampling scheme established for each inspection unit. (i) If the inspectors find evidence of any plant pest for which a treatment authorized in part 305 of this chapter is available, fruit in the inspection unit will remain eligible for shipment to the United States if the entire inspection unit is treated for the pest in Chile. However, if the entire inspection unit is not treated in this manner, or if a plant pest is found for which no treatment authorized in part 305 of this chapter is available, the entire inspection unit will not be eligible for shipment to the United States. (ii) Apricots, nectarines, peaches, plumcot, and plums precleared for shipment to the United States as prescribed in this paragraph will not be inspected again in the United States except as necessary to ensure that the fruit has been precleared and for occasional monitoring purposes. (2) [Reserved] (e) Termination of preclearance programs. Consignments of apricots, nectarines, peaches, plumcot, and plums will be individually evaluated regarding the rates of infestation of inspection units of these articles presented for preclearance. The inspection program for an article will be terminated when inspections determine that the rate of infestation of inspection units of the article by pests listed in paragraph (f) of this section exceeds 20 percent calculated on any consecutive 14 days of actual inspections (not counting days on which inspections are not conducted). Termination of the inspection program for an article will require mandatory treatment in Chile, prior to shipment to the United States, of consignments of the article for the remainder of that shipping season. If a preclearance inspection program is terminated with Chile, precleared fruit in transit to the United States at the time of termination will be spot-checked by inspectors upon arrival in the United States for evidence of plant pests referred to in paragraph (f) of this section. (f) Plant pests; authorized treatments. (1) Apricots, nectarines, peaches, plumcot, or plums from Chile may be imported into the United States only if they are found free of the following pests or, if an authorized treatment is available, they are treated for: Proeulia spp., Leptoglossus chilensis, Megalometis chilensis, Naupactus xanthographus, Listroderes subcinctus, and Conoderus rufangulus, and other insect pests that the Administrator has determined do not exist, or are not widespread, in the United States. (2) Authorized treatments are listed in part 305 of this chapter. (g) Inspection in the United States. Notwithstanding provisions to the contrary in paragraphs (c) and (d) of this section, the Administrator may, in emergency or extraordinary situations, allow apricots, nectarines, peaches, plumcot, or plums imported under this section to be inspected at a port of arrival in the United States, in lieu of a preclearance inspection or fumigation in Chile, under the following conditions: (1) The Administrator is satisfied that a unique situation exists which justifies a limited exception to mandatory preclearance; (2) The Administrator has determined that inspection and/or treatment can be accomplished at the intended port of arrival without increasing the risk of introducing quarantine pests into the United States; (3) The entire consignment of apricots, nectarines, peaches, plumcot, or plums must be offloaded and moved to an enclosed warehouse, where inspection and treatment facilities are available. (4) The Administrator must determine that a sufficient number of inspectors are available at the port of arrival to perform the services required. (5) The method of sampling and inspection will be the same as prescribed in paragraph (d) of this section for preclearance inspections. Sec. 319.56-24 Lettuce and peppers from Israel. (a) Lettuce may be imported into the United States from Israel without fumigation for leafminers, thrips, and Sminthuris viridis only in accordance with this section and other applicable provisions of this subpart. (1) Growing conditions. (i) The lettuce must be grown in insect- proof houses covered with 50 mesh screens, double self-closing doors, and hard walks (no soil) between the beds; (ii) The lettuce must be grown in growing media that has been sterilized by steam or chemical means; (iii) The lettuce must be inspected during its active growth phase and the inspection must be monitored by a representative of the Israeli Ministry of Agriculture; (iv) The crop must be protected with sticky traps and prophylactic sprays approved for the crop by Israel; (v) The lettuce must be moved to an insect-proof packing house at night in plastic containers covered by 50 mesh screens; (vi) The lettuce must be packed in an insect-proof packing house, individually packed in transparent plastic bags, packed in cartons, placed on pallets, and then covered with shrink wrapping; and (vii) The lettuce must be transported to the airport in a closed refrigerated truck for shipment to the United States. (2) Each consignment of lettuce must be accompanied by a phytosanitary certificate issued by the Israeli Ministry of Agriculture stating that the conditions of paragraph (a)(1) of this section have been met. (b) Peppers (fruit) (Capsicum spp.) from Israel may be imported into the United States only under the following conditions: (1) The peppers have been grown in the Arava Valley by growers registered with the Israeli Department of Plant Protection and Inspection (DPPI). (2) Malathion bait sprays shall be applied in the residential areas of the Arava Valley at 6- to 10-day intervals beginning not less than 30 days before the harvest of backyard host material in residential areas and shall continue through harvest. (3) The peppers have been grown in insect-proof plastic screenhouses approved by the DPPI and APHIS. Houses shall be examined periodically by DPPI or APHIS personnel for tears in either plastic or screening. (4) Trapping for Mediterranean fruit fly (Medfly) shall be conducted by DPPI throughout the year in the agricultural region along Arava Highway 90 and in the residential area of Paran. The capture of a single Medfly in a screenhouse will immediately cancel export from that house until the source of the infestation is delimited, trap density is increased, pesticide sprays are applied, or other measures acceptable to APHIS are taken to prevent further occurrences. (5) Signs in English and Hebrew shall be posted along Arava Highway 90 stating that it is prohibited to throw out/discard fruits and vegetables from passing vehicles. (6) Sorting and packing of peppers shall be done in the insect- proof screenhouses in the Arava Valley. (7) Prior to movement from approved insect-proof screenhouses in the Arava [[Page 25047]] Valley, the peppers must be packed in either individual insect-proof cartons or in non-insect-proof cartons that are covered by insect-proof mesh or plastic tarpaulins; covered non-insect-proof cartons must be placed in shipping containers. (8) The packaging safeguards required by paragraph (b)(7) of this section must remain intact at all times during the movement of the peppers to the United States and must be intact upon arrival of the peppers in the United States. (9) Each consignment of peppers must be accompanied by a phytosanitary certificate issued by the Israeli national plant protection organization stating that the conditions of paragraphs (b)(1) though (b)(7) of this section have been met. Sec. 319.56-25 Papayas from Central America and Brazil. The Solo type of papaya may be imported into the continental United States, Alaska, Puerto Rico, and the U.S. Virgin Islands only in accordance with this section and other applicable provisions of this subpart. (a) The papayas were grown and packed for shipment to the United States in one of the following locations: (1) Brazil: State of Espirito Santo; all areas in the State of Bahia that are between the Jequitinhonha River and the border with the State of Espirito Santo and all areas in the State of Rio Grande del Norte that contain the following municipalities: Touros, Pureza, Rio do Fogo, Barra de Maxaranguape, Taipu, Ceara Mirim, Extremoz, Ielmon Marinho, Sao Goncalo do Amarante, Natal, Maciaba, Parnamirim, Veracruz, Sao Jose de Mipibu, Nizia Floresta, Monte Aletre, Areas, Senador Georgino Avelino, Espirito Santo, Goianinha, Tibau do Sul, Vila Flor, and Canguaretama e Baia Formosa. (2) Costa Rica: Provinces of Guanacaste, Puntarenas, San Jose. (3) El Salvador: Departments of La Libertad, La Paz, and San Vicente. (4) Guatemala: Departments of Escuintla, Retalhuleu, Santa Rosa, and Suchitep[eacute]quez. (5) Honduras: Departments of Comayagua, Cort[eacute]s, and Santa B[aacute]rbara. (6) Nicaragua: Departments of Carazo, Granada, Leon, Managua, Masaya, and Rivas. (7) Panama: Provinces of Cocle, Herrera, and Los Santos; Districts of Aleanje, David, and Dolega in the Province of Chiriqui; and all areas in the Province of Panama that are west of the Panama Canal. (b) Beginning at least 30 days before harvest began and continuing through the completion of harvest, all trees in the field where the papayas were grown were kept free of papayas that were one-half or more ripe (more than one-fourth of the shell surface yellow), and all culled and fallen fruits were buried, destroyed, or removed from the farm at least twice a week. (c) The papayas were held for 20 minutes in hot water at 48 [deg]C (118.4 [deg]F). (d) When packed, the papayas were less than one-half ripe (the shell surface was no more than one-fourth yellow, surrounded by light green), and appeared to be free of all injurious insect pests. (e) The papayas were safeguarded from exposure to fruit flies from harvest to export, including being packaged so as to prevent access by fruit flies and other injurious insect pests. The package containing the papayas does not contain any other fruit, including papayas not qualified for importation into the United States. (f) All cartons in which papayas are packed must be stamped ``Not for importation into or distribution in HI.'' (g) All activities described in paragraphs (a) through (f) of this section were carried out under the supervision and direction of plant health officials of the national Ministry of Agriculture. (h) Beginning at least 1 year before harvest begins and continuing through the completion of harvest, fruit fly traps were maintained in the field where the papayas were grown. The traps were placed at a rate of 1 trap per hectare and were checked for fruit flies at least once weekly by plant health officials of the national Ministry of Agriculture. Fifty percent of the traps were of the McPhail type, and 50 percent of the traps were of the Jackson type. If the average Jackson trap catch was greater than seven Medflies per trap per week, measures were taken to control the Medfly population in the production area. The national Ministry of Agriculture kept records of fruit fly finds for each trap, updated the records each time the traps were checked, and made the records available to APHIS inspectors upon request. The records were maintained for at least 1 year. (i) If the average Jackson trap catch exceeds 14 Medflies per trap per week, importations of papayas from that production area must be halted until the rate of capture drops to an average of 7 or fewer Medflies per trap per week. (j) In the State of Espirito Santo, Brazil, if the average McPhail trap catch was greater than seven South American fruit flies (Anastrepha fraterculus) per trap per week, measures were taken to control the South American fruit fly population in the production area. If the average McPhail trap catch exceeds 14 South American fruit flies per trap per week, importations of papayas from that production area must be halted until the rate of capture drops to an average of 7 or fewer South American fruit flies per trap per week. (k) All consignments must be accompanied by a phytosanitary certificate issued by the national Ministry of Agriculture stating that the papayas were grown, packed, and shipped in accordance with the provisions of this section. Sec. 319.56-26 Melon and watermelon from certain countries in South America. (a) Cantaloupe and watermelon from Ecuador. Cantaloupe (Cucumis melo) and watermelon (fruit) (Citrullus lanatus) may be imported into the United States from Ecuador only in accordance with this paragraph and all other applicable requirements of this subpart: (1) The cantaloupe or watermelon may be imported in commercial consignments only. (2) The cantaloupe or watermelon must have been grown in an area where trapping for the South American cucurbit fly (Anastrepha grandis) has been conducted for at least the previous 12 months by the national plant protection organization (NPPO) of Ecuador, under the direction of APHIS, with no findings of the pest.\4\ --------------------------------------------------------------------------- \4\ Information on the trapping program may be obtained by writing to the Animal and Plant Health Inspection Service, International Services, Stop 3432, 1400 Independence Avenue, SW., Washington, DC 20250-3432. --------------------------------------------------------------------------- (3) The following area meets the requirements of paragraph (a)(2) of this section: The area within 5 kilometers of either side of the following roads: (i) Beginning in Guayaquil, the road north through Nobol, Palestina, and Balzar to Velasco-Ibarra (Empalme); (ii) Beginning in Guayaquil, the road south through E1 26, Puerto Inca, Naranjal, and Camilo Ponce to Enriquez; (iii) Beginning in Guayaquil, the road east through Palestina to Vinces; (iv) Beginning in Guayaquil, the road west through Piedrahita (Novol) to Pedro Carbo; or (v) Beginning in Guayaquil, the road west through Progreso, Engunga, Tugaduaja, and Zapotal to El Azucar. (4) The cantaloupe or watermelon may not be moved into Alabama, American Samoa, Arizona, California, Florida, Georgia, Guam, Hawaii, Louisiana, Mississippi, New Mexico, Puerto Rico, South Carolina, Texas, and the U.S. Virgin Islands. The boxes in which the cantaloupe or watermelon is packed must be stamped with the name [[Page 25048]] of the commodity followed by the words ``Not to be distributed in the following States or territories: AL, AS, AZ, CA, FL, GA, GU, HI, LA, MS, NM, PR, SC, TX, VI''. (b) Cantaloupe, netted melon, vegetable melon, winter melon, and watermelon from Peru. Cantaloupe, netted melon, vegetable melon, and winter melon (Cucumis melo L. subsp. melo); and watermelon may be imported into the United States from Peru only in accordance with this paragraph and all other applicable requirements of this subpart: (1) The fruit may be imported in commercial consignments only. (2) The fruit must have been grown in an area of Peru considered by APHIS to be free of the South American cucurbit fly, must be accompanied by a phytosanitary certificate declaring its origin in such an area, and must be safeguarded and labeled, each in accordance with Sec. 319.56-5 of this subpart. (3) The phytosanitary certificate required under Sec. 319.56-5 must also include a declaration by the NPPO of Peru indicating that, upon inspection, the fruit was found free of the gray pineapple mealybug (Dysmicoccus neobrevipes). (4) All shipments of fruit must be labeled in accordance with Sec. 319.56-5(e) of this subpart, and the boxes in which the fruit is packed must be labeled ``Not for distribution in HI, PR, VI, or Guam.'' Sec. 319.56-27 Fuji variety apples from Japan and the Republic of Korea. Fuji variety apples may be imported into the United States from Japan and the Republic of Korea only in accordance with this section and other applicable provisions of this subpart. (a) Treatment and fumigation. The apples must be cold treated and then fumigated, under the supervision of an APHIS inspector, either in Japan or the Republic of Korea, for the peach fruit moth (Carposina niponensis), the yellow peach moth (Conogethes punctiferalis), and the fruit tree spider mite (Tetranychus viennensis), in accordance with part 305 of this chapter. (b) APHIS inspection. The apples must be inspected upon completion of the treatments required by paragraph (a) of this section, prior to export from Japan or the Republic of Korea, by an APHIS inspector and an inspector from the national plant protection agency of Japan or the Republic of Korea. The apples shall be subject to further disinfection in the exporting country if plant pests are found prior to export. Imported Fuji variety apples inspected in Japan or the Republic of Korea are also subject to inspection and disinfection at the port of first arrival, as provided in Sec. 319.56-3. (c) Trust fund agreements. The national plant protection agency of the exporting country must enter into a trust fund agreement with APHIS in accordance with Sec. 319.56-6 before APHIS will provide the services necessary for Fuji variety apples to be imported into the United States from Japan or the Republic of Korea. Sec. 319.56-28 Tomatoes from certain countries. (a) Tomatoes (fruit) (Lycopersicon esculentum) from Spain. Pink or red tomatoes may be imported into the United States from Spain only in accordance with this section and other applicable provisions of this subpart.\5\ --------------------------------------------------------------------------- \5\ The surface area of a pink tomato is more than 30 percent but not more than 60 percent pink and/or red. The surface area of a red tomato is more than 60 percent pink and/or red. Green tomatoes from Spain, France, Morocco, and Western Sahara may be imported in accordance with Sec. Sec. 319.56-3 and 319.56-4. --------------------------------------------------------------------------- (1) The tomatoes must be grown in the Almeria Province, the Murcia Province, or the municipalities of Albu[ntilde]ol and Carchuna in the Granada Province of Spain in greenhouses registered with, and inspected by, the Spanish Ministry of Agriculture, Fisheries, and Food (MAFF); (2) The tomatoes may be shipped only from December 1 through April 30, inclusive; (3) Two months prior to shipping, and continuing through April 30, MAFF must set and maintain Mediterranean fruit fly (Medfly) traps baited with trimedlure inside the greenhouses at a rate of four traps per hectare. In all areas outside the greenhouses and within 8 kilometers, including urban and residential areas, MAFF must place Medfly traps at a rate of four traps per square kilometer. All traps must be checked every 7 days; (4) Capture of a single Medfly in a registered greenhouse will immediately result in cancellation of exports from that greenhouse until the source of infestation is determined, the Medfly infestation is eradicated, and measures are taken to preclude any future infestation. Capture of a single Medfly within 2 kilometers of a registered greenhouse will necessitate increasing trap density in order to determine whether there is a reproducing population in the area. Capture of two Medflies within 2 kilometers of a registered greenhouse and within a 1-month time period will result in cancellation of exports from all registered greenhouses within 2 kilometers of the find until the source of infestation is determined and the Medfly infestation is eradicated; (5) MAFF must maintain records of trap placement, checking of traps, and any Medfly captures, and must make the records available to APHIS upon request; (6) The tomatoes must be packed within 24 hours of harvest. They must be safeguarded from harvest to export by insect-proof mesh screens or plastic tarpaulins, including while in transit to the packing house and while awaiting packaging. They must be packed in insect-proof cartons or containers, or covered by insect-proof mesh or plastic tarpaulins for transit to the airport and subsequent export to the United States. These safeguards must be intact upon arrival in the United States; and (7) MAFF is responsible for export certification inspection and issuance of phytosanitary certificates. Each consignment of tomatoes must be accompanied by a phytosanitary certificate issued by MAFF and bearing the declaration, ``These tomatoes were grown in registered greenhouses in Almeria Province, the Murcia Province, or the municipalities of Albu[ntilde]ol and Carchuna in the Granada Province in Spain.'' (b) Tomatoes (fruit) (Lycopersicon esculentum) from France. Pink or red tomatoes may be imported into the United States from France only in accordance with this section and other applicable provisions of this subpart.\6\ --------------------------------------------------------------------------- \6\ See footnote 5 to paragraph (a) of this section. --------------------------------------------------------------------------- (1) The tomatoes must be grown in the Brittany Region of France in greenhouses registered with, and inspected by, the Service de la Protection Vegetaux (SRPV); (2) From June 1 through September 30, SRPV must set and maintain one Medfly trap baited with trimedlure inside and one outside each greenhouse and must check the traps every 7 days; (3) Capture of a single Medfly inside or outside a registered greenhouse will immediately result in cancellation of exports from that greenhouse until the source of the infestation is determined, the Medfly infestation is eradicated, and measures are taken to preclude any future infestation; (4) SRPV must maintain records of trap placement, checking of traps, and any Medfly captures, and must make them available to APHIS upon request; (5) From June 1 through September 30, the tomatoes must be packed within 24 hours of harvest. They must be safeguarded by insect-proof mesh screen [[Page 25049]] or plastic tarpaulin while in transit to the packing house and while awaiting packing. They must be packed in insect-proof cartons or containers, or covered by insect-proof mesh screen or plastic tarpaulin. These safeguards must be intact upon arrival in the United States; and (6) SRPV is responsible for export certification inspection and issuance of phytosanitary certificates. Each consignment of tomatoes must be accompanied by a phytosanitary certificate issued by SRPV and bearing the declaration, ``These tomatoes were grown in registered greenhouses in the Brittany Region of France.'' (c) Tomatoes (fruit) (Lycopersicon esculentum) from Morocco and Western Sahara. Pink tomatoes may be imported into the United States from Morocco and Western Sahara only in accordance with this section and other applicable provisions of this subpart.\7\ --------------------------------------------------------------------------- \7\ See footnote 5 to paragraph (a) of this section. --------------------------------------------------------------------------- (1) The tomatoes must be grown in the provinces of El Jadida or Safi in Morocco or in the province of Dahkla in Western Sahara in insect-proof greenhouses registered with, and inspected by, the Moroccan Ministry of Agriculture, Division of Plant Protection, Inspection, and Enforcement (DPVCTRF); (2) The tomatoes may be shipped from Morocco and Western Sahara only between December 1 and April 30, inclusive; (3) Beginning 2 months prior to the start of the shipping season and continuing through the end of the shipping season, DPVCTRF must set and maintain Mediterranean fruit fly (Medfly) traps baited with trimedlure inside the greenhouses at a rate of four traps per hectare. In Morocco, traps must also be placed outside registered greenhouses within a 2-kilometer radius at a rate of four traps per square kilometer. In Western Sahara, a single trap must be placed outside in the immediate proximity of each registered greenhouse. All traps in Morocco and Western Sahara must be checked every 7 days; (4) DPVCTRF must maintain records of trap placement, checking of traps, and any Medfly captures, and make the records available to APHIS upon request; (5) Capture of a single Medfly in a registered greenhouse will immediately result in cancellation of exports from that greenhouse until the source of the infestation is determined, the Medfly infestation has been eradicated, and measures are taken to preclude any future infestation. Capture of a single Medfly within 200 meters of a registered greenhouse will necessitate increasing trap density in order to determine whether there is a reproducing population in the area. Six additional traps must be placed within a radius of 200 meters surrounding the trap where the Medfly was captured. Capture of two Medflies within 200 meters of a registered greenhouse and within a 1- month time period will necessitate Malathion bait sprays in the area every 7 to 10 days for 60 days to ensure eradication; (6) The tomatoes must be packed within 24 hours of harvest and must be pink at the time of packing. They must be safeguarded by an insect- proof mesh screen or plastic tarpaulin while in transit to the packing house and while awaiting packing. They must be packed in insect-proof cartons or containers, or covered by insect-proof mesh or plastic tarpaulin for transit to the airport and export to the United States. These safeguards must be intact upon arrival in the United States; and (7) The Moroccan Ministry of Agiculture, Fresh Product Export (EACCE) is responsible for export certification inspection and issuance of phytosanitary certificates. Each consignment of tomatoes must be accompanied by a phytosanitary certificate issued by EACCE and bearing the declaration, ``These tomatoes were grown in registered greenhouses in El Jadida or Safi Province, Morocco, and were pink at the time of packing'' or ``These tomatoes were grown in registered greenhouses in Dahkla Province, Western Sahara and were pink at the time of packing.'' (d) Tomatoes (fruit) (Lycopersicon esculentum) from Chile. Tomatoes from Chile, whether green or at any stage of ripeness, may be imported into the United States only in accordance with this section and other applicable provisions of this subpart. (1) The tomatoes must be treated in Chile with methyl bromide in accordance with part 305 of this chapter. The treatment must be conducted in facilities registered with the Servicio Agricola y Ganadero (SAG) and with APHIS personnel monitoring the treatments; (2) The tomatoes must be treated and packed within 24 hours of harvest. Once treated, the tomatoes must be safeguarded by an insect- proof mesh screen or plastic tarpaulin while in transit to the packing house and awaiting packing. They must be packed in insect-proof cartons or containers, or insect-proof mesh or plastic tarpaulin under APHIS monitoring for transit to the airport and subsequent export to the United States. These safeguards must be intact upon arrival in the United States; and (3) Tomatoes may be imported into the United States from Chile only if SAG has entered into a trust fund agreement with APHIS for that shipping season in accordance with Sec. 319.56-6. This agreement requires SAG to pay in advance all costs that APHIS estimates it will incur in providing the preclearance services prescribed in this section for that shipping season. (e) Tomatoes (fruit) (Lycopersicon esculentum) from Australia. Tomatoes may be imported into the United States from Australia only in accordance with this section and other applicable provisions of this subpart. (1) The tomatoes must be grown in greenhouses registered with, and inspected by, the Australian Quarantine Inspection Service (AQIS); (2) Two months prior to shipping, AQIS must inspect the greenhouse to establish its freedom from the following quarantine pests: Bactrocera aquilonis, B. cucumis, B. jarvis, B. neohumeralis, B. tryoni, Ceratitis capitata, Chrysodeixis argentifera, C. erisoma, Helicoverpa armigera, H. punctigera, Lamprolonchaea brouniana, Sceliodes cordalis, and Spodoptera litura. AQIS must also set and maintain fruit fly traps inside the greenhouses and around the perimeter of the greenhouses. Inside the greenhouses, the traps must be APHIS-approved fruit fly traps, and they must be set at the rate of six per hectare. In all areas outside the greenhouse and within 8 kilometers of the greenhouse, fruit fly traps must be placed on a 1- kilometer grid. All traps must be checked at least every 7 days; (3) Within a registered greenhouse, capture of a single fruit fly or other quarantine pest will result in immediate cancellation of exports from that greenhouse until the source of the infestation is determined, the infestation has been eradicated, and measures are taken to preclude any future infestation; (4) Outside of a registered greenhouse, if one fruit fly of the species specified in paragraph (e)(2) of this section is captured, the trap density and frequency of trap inspection must be increased to detect a reproducing colony. Capture of two Medflies or three of the same species of Bactrocera within 2 kilometers of each other and within 30 days will result in the cancellation of exports from all registered greenhouses within 2 kilometers of the finds until the source of the infestation is determined and the fruit fly infestation is eradicated; (5) AQIS must maintain records of trap placement, checking of traps, and [[Page 25050]] any fruit fly captures, and must make the records available to APHIS upon request; (6) The tomatoes must be packed within 24 hours of harvest. They must be safeguarded by an insect-proof mesh screen or plastic tarpaulin while in transit to the packing house or while awaiting packing. They must be placed in insect-proof cartons or containers, or securely covered with insect-proof mesh or plastic tarpaulin for transport to the airport or other shipping point. These safeguards must be intact upon arrival in the United States; and (7) Each consignment of tomatoes must be accompanied by a phytosanitary certificate issued by AQIS stating ``These tomatoes were grown, packed, and shipped in accordance with the requirements of Sec. 319.56-28(e) of 7 CFR.'' Sec. 319.56-29 Ya variety pears from China. Ya variety pears may be imported into the United States from China only in accordance with this section and other applicable provisions of this subpart. (a) Growing and harvest conditions. (1) The pears must have been grown by growers registered with the Chinese Ministry of Agriculture in an APHIS-approved export growing area in the Hebei or Shandong Provinces. (2) Field inspections for signs of pest infestation must be conducted by the Chinese Ministry of Agriculture during the growing season. (3) The registered growers shall be responsible for following the phytosanitary measures agreed upon by APHIS and the Chinese Ministry of Agriculture, including applying pesticides to reduce the pest population and bagging the pears on the trees to reduce the opportunity for pests to attack the fruit during the growing season. The bags must remain on the pears through the harvest and during their movement to the packing house. (4) The packing houses in which the pears are prepared for exportation shall not be used for any fruit other than Ya variety pears from registered growers during the pear export season. The packing houses shall accept only those pears that are in intact bags as required by paragraph (a)(3) of this section. The pears must be loaded into containers at the packing house and the containers then sealed before movement to the port of export. (b) Treatment. Pears from Shandong Province must be cold treated for Bactrocera dorsalis in accordance with part 305 of this chapter. (c) Each consignment of pears must be accompanied by a phytosanitary certificate issued by the Chinese Ministry of Agriculture stating that the conditions of this section have been met. Sec. 319.56-30 Hass avocados from Michoacan, Mexico. Fresh Hass variety avocados (Persea americana) may be imported from Michoacan, Mexico, into the United States in accordance with the requirements of Sec. 319.56-3 of this subpart, and only under the following conditions: (a) Shipping restrictions. (1) The avocados may be imported in commercial consignments only; (2) Between January 31, 2005 and January 31, 2007, the avocados may be imported into and distributed in all States except California, Florida, Hawaii, Puerto Rico, and U.S. Territories. After January 31, 2007, the avocados may be imported into and distributed in all States, but not Puerto Rico or any U.S. Territory. (b) Trust fund agreement. The avocados may be imported only if the Mexican avocado industry association representing Mexican avocado growers, packers, and exporters has entered into a trust fund agreement with APHIS for that shipping season in accordance with Sec. 319.56-6. (c) Safeguards in Mexico. The avocados must have been grown in the Mexican State of Michoacan in an orchard located in a municipality that meets the requirements of paragraph (c)(1) of this section. The orchard in which the avocados are grown must meet the requirements of paragraph (c)(2) of this section. The avocados must be packed for export to the United States in a packinghouse that meets the requirements of paragraph (c)(3) of this section. The Mexican national plant protection organization (NPPO) must provide an annual work plan to APHIS that details the activities that the Mexican NPPO will, subject to APHIS' approval of the work plan, carry out to meet the requirements of this section; APHIS will be directly involved with the Mexican NPPO in the monitoring and supervision of those activities. The personnel conducting the trapping and pest surveys must be hired, trained, and supervised by the Mexican NPPO or by the Michoacan State delegate of the Mexican NPPO. (1) Municipality requirements. (i) The municipality must be listed as an approved municipality in the bilateral work plan provided to APHIS by the Mexican NPPO. (ii) The municipality must be surveyed at least semiannually (once during the wet season and once during the dry season) and found to be free from the large avocado seed weevil Heilipus lauri, the avocado seed moth Stenoma catenifer, and the small avocado seed weevils Conotrachelus aguacatae and C. perseae. (iii) Trapping must be conducted in the municipality for Mediterranean fruit fly (Medfly) (Ceratitis capitata) at the rate of 1 trap per 1 to 4 square miles. Any findings of Medfly must be reported to APHIS. (2) Orchard and grower requirements. The orchard and the grower must be registered with the Mexican NPPO's avocado export program and must be listed as an approved orchard or an approved grower in the annual work plan provided to APHIS by the Mexican NPPO. The operations of the orchard must meet the following conditions: (i) The orchard and all contiguous orchards and properties must be surveyed semiannually and found to be free from the avocado stem weevil Copturus aguacatae. (ii) Trapping must be conducted in the orchard for the fruit flies Anastrepha ludens, A. serpentina, and A. striata at the rate of one trap per 10 hectares. If one of those fruit flies is trapped, at least 10 additional traps must be deployed in a 50-hectare area immediately surrounding the trap in which the fruit fly was found. If within 30 days of the first finding any additional fruit flies are trapped within the 260-hectare area surrounding the first finding, malathion bait treatments must be applied in the affected orchard in order for the orchard to remain eligible to export avocados. (iii) Avocado fruit that has fallen from the trees must be removed from the orchard at least once every 7 days and may not be included in field boxes of fruit to be packed for export. (iv) Dead branches on avocado trees in the orchard must be pruned and removed from the orchard. (v) Harvested avocados must be placed in field boxes or containers of field boxes that are marked to show the official registration number of the orchard. The avocados must be moved from the orchard to the packinghouse within 3 hours of harvest or they must be protected from fruit fly infestation until moved. (vi) The avocados must be protected from fruit fly infestation during their movement from the orchard to the packinghouse and must be accompanied by a field record indicating that the avocados originated from a certified orchard. (3) Packinghouse requirements. The packinghouse must be registered with the Mexican NPPO's avocado export program and must be listed as an [[Page 25051]] approved packinghouse in the annual work plan provided to APHIS by the Mexican NPPO. The operations of the packinghouse must meet the following conditions: (i) During the time the packinghouse is used to prepare avocados for export to the United States, the packinghouse may accept fruit only from orchards certified by the Mexican NPPO for participation in the avocado export program. (ii) All openings to the outside must be covered by screening with openings of not more than 1.6 mm or by some other barrier that prevents insects from entering the packinghouse. (iii) The packinghouse must have double doors at the entrance to the facility and at the interior entrance to the area where the avocados are packed. (iv) Prior to the culling process, a biometric sample, at a rate determined by APHIS, of avocados per consignment must be selected, cut, and inspected by the Mexican NPPO and found free from pests. (v) The identity of the avocados must be maintained from field boxes or containers to the shipping boxes so the avocados can be traced back to the orchard in which they were grown if pests are found at the packinghouse or the port of first arrival in the United States. (vi) Prior to being packed in boxes, each avocado fruit must be cleaned of all stems, leaves, and other portions of plants and labeled with a sticker that bears the official registration number of the packinghouse. (vii) The avocados must be packed in clean, new boxes, or clean plastic reusable crates. The boxes or crates must be clearly marked with the identity of the grower, packinghouse, and exporter. Between January 31, 2005 and January 31, 2007, the boxes or crates must be clearly marked with the statement ``Not for importation or distribution in CA, FL, HI, Puerto Rico or U.S. Territories.'' After January 31, 2007, the boxes or crates must be clearly marked with the statement ``Not for importation or distribution in Puerto Rico or U.S. Territories.'' (viii) The boxes must be placed in a refrigerated truck or refrigerated container and remain in that truck or container while in transit through Mexico to the port of first arrival in the United States. Prior to leaving the packinghouse, the truck or container must be secured by Sanidad Vegetal with a seal that will be broken when the truck or container is opened. Once sealed, the refrigerated truck or refrigerated container must remain unopened until it reaches the port of first arrival in the United States. (ix) Any avocados that have not been packed or loaded into a refrigerated truck or refrigerated container by the end of the work day must be kept in the screened packing area. (d) Certification. All consignments of avocados must be accompanied by a phytosanitary certificate issued by the Mexican NPPO with an additional declaration certifying that the conditions specified in this section have been met. (e) Pest detection. (1) If any of the avocado seed pests Heilipus lauri, Conotrachelus aguacatae, C. perseae, or Stenoma catenifer are discovered in a municipality during the semiannual pest surveys, orchard surveys, packinghouse inspections, or other monitoring or inspection activity in the municipality, the Mexican NPPO must immediately initiate an investigation and take measures to isolate and eradicate the pests. The Mexican NPPO must also provide APHIS with information regarding the circumstances of the infestation and the pest risk mitigation measures taken. The municipality in which the pests are discovered will lose its pest-free certification and avocado exports from that municipality will be suspended until APHIS and the Mexican NPPO agree that the pest eradication measures taken have been effective and that the pest risk within that municipality has been eliminated. (2) If the Mexican NPPO discovers the stem weevil Copturus aguacatae in an orchard during an orchard survey or other monitoring or inspection activity in the orchard, the Mexican NPPO must provide APHIS with information regarding the circumstances of the infestation and the pest risk mitigation measures taken. The orchard in which the pest was found will lose its export certification immediately and avocado exports from that orchard will be suspended until APHIS and the Mexican NPPO agree that the pest eradication measures taken have been effective and that the pest risk within that orchard has been eliminated. (3) If the Mexican NPPO discovers the stem weevil Copturus aguacatae in fruit at a packinghouse, the Mexican NPPO must investigate the origin of the infested fruit and provide APHIS with information regarding the circumstances of the infestation and the pest risk mitigation measures taken. The orchard where the infested fruit originated will lose its export certification immediately and avocado exports from that orchard will be suspended until APHIS and the Mexican NPPO agree that the pest eradication measures taken have been effective and that the pest risk within that orchard has been eliminated. (f) Ports. The avocados may enter the United States only through a port of entry located in a State where the distribution of the fruit is authorized pursuant to paragraph (a)(2) of this section. (g) Inspection. The avocados are subject to inspection by an inspector at the port of first arrival. At the port of first arrival, an inspector will sample and cut avocados from each consignment to detect pest infestation. (h) Inspection. The avocados are subject to inspection by an inspector at the port of first arrival, at any stops in the United States en route to an approved State, and upon arrival at the terminal market in the approved States. At the port of first arrival, an inspector will sample and cut avocados from each shipment to detect pest infestation. (i) Repackaging. If any avocados are removed from their original shipping boxes and repackaged, the stickers required by paragraph (c)(3)(vi) of this section may not be removed or obscured and the new boxes must be clearly marked with all the information required by paragraph (c)(3)(vii) of this section. Sec. 319.56-31 Peppers from Spain. Peppers (fruit) (Capsicum spp.) may be imported into the United States from Spain only under permit, and only in accordance with this section and all other applicable requirements of this subpart: (a) The peppers must be grown in the Alicante or Almeria Province of Spain in pest-proof greenhouses registered with, and inspected by, the Spanish Ministry of Agriculture, Fisheries, and Food (MAFF); (b) The peppers may be shipped only from December 1 through April 30, inclusive; (c) Beginning October 1, and continuing through April 30, MAFF must set and maintain Mediterranean fruit fly (Ceratitis capitata) (Medfly) traps baited with trimedlure inside the greenhouses at a rate of four traps per hectare. In all outside areas, including urban and residential areas, within 8 kilometers of the greenhouses, MAFF must set and maintain Medfly traps baited with trimedlure at a rate of four traps per square kilometer. All traps must be checked every 7 days; (d) Capture of a single Medfly in a registered greenhouse will immediately halt exports from that greenhouse until the Administrator determines that the source of infestation has been identified, that all Medflies have been eradicated, [[Page 25052]] and that measures have been taken to preclude any future infestation. Capture of a single Medfly within 2 kilometers of a registered greenhouse will necessitate increased trap density in order to determine whether there is a reproducing population in the area. Capture of two Medflies within 2 kilometers of a registered greenhouse during a 1-month period will halt exports from all registered greenhouses within 2 kilometers of the capture, until the source of infestation is determined and all Medflies are eradicated; (e) The peppers must be safeguarded from harvest to export by insect-proof mesh or plastic tarpaulin, including while in transit to the packing house and while awaiting packing. They must be packed in insect-proof cartons or covered by insect-proof mesh or plastic tarpaulin for transit to the airport and subsequent export to the United States. These safeguards must be intact upon arrival in the United States; (f) The peppers must be packed for shipment within 24 hours of harvest; (g) During shipment, the peppers may not transit other fruit fly- supporting areas unless shipping containers are sealed by MAFF with an official seal whose number is noted on the phytosanitary certificate; and (h) A phytosanitary certificate issued by MAFF and bearing the declaration, ``These peppers were grown in registered greenhouses in Alicante or Almeria Province in Spain,'' must accompany the consignment. Sec. 319.56-32 Peppers from New Zealand. Peppers (fruit) (Capsicum spp.) from New Zealand may be imported into the United States only in accordance with this section and other applicable provisions of this subpart. (a) The peppers must be grown in New Zealand in insect-proof greenhouses approved by the New Zealand Ministry of Agriculture and Forestry (MAF). (b) The greenhouses must be equipped with double self-closing doors, and any vents or openings in the greenhouses (other than the double closing doors) must be covered with 0.6 mm screening in order to prevent the entry of pests into the greenhouse. (c) The greenhouses must be examined periodically by MAF to ensure that the screens are intact. (d) Each consignment of peppers must be accompanied by a phytosanitary certificate of inspection issued by MAF bearing the following declaration: ``These peppers were grown in greenhouses in accordance with the conditions in Sec. 319.56-32.'' Sec. 319.56-33 Mangoes from the Philippines. Mangoes (fruit) (Mangifera indica) may be imported into the United States from the Philippines only in accordance with this section and other applicable provisions of this subpart. (a) Limitation of origin. The mangoes must have been grown on the island of Guimaras, which the Administrator has determined meets the criteria set forth in Sec. 319.56-5 with regard to the mango seed weevil (Sternochetus mangiferae). (b) Treatment. The mangoes must be treated for fruit flies of the genus Bactrocera with vapor heat under the supervision of an inspector in accordance with the regulations in part 305 of this chapter. (c) Inspection. Mangoes from the Philippines are subject to inspection under the direction of an inspector, either in the Philippines or at the port of first arrival in the United States. Mangoes inspected in the Philippines are subject to reinspection at the port of first arrival in the United States as provided in Sec. 319.56- 3. (d) Labeling. Each box of mangoes must be clearly labeled in accordance with Sec. 319.56-5(c)(1). (e) Phytosanitary certificate. Each consignment of mangoes must be accompanied by a phytosanitary certificate issued by the Republic of the Philippines Department of Agriculture that contains additional declarations stating that the mangoes were grown on the island of Guimaras and have been treated for fruit flies of the genus Bactrocera in accordance with paragraph (b) of this section. (f) Trust Fund Agreement. Mangoes that are treated or inspected in the Philippines may be imported into the United States only if the Republic of the Philippines Department of Agriculture (RPDA) has entered into a trust fund agreement with APHIS in accordance with Sec. 319.56-6. Sec. 319.56-34 Clementines from Spain. Clementines (Citrus reticulata) from Spain may only be imported into the United States in accordance with this section and other applicable provisions of this subpart. (a) Trust fund agreement. Clementines from Spain may be imported only if the Government of Spain or its designated representative enters into a trust fund agreement with APHIS before each shipping season in accordance with Sec. 319.56-6. (b) Grower registration and agreement. Persons who produce clementines in Spain for export to the United States must: (1) Be registered with the Government of Spain; and (2) Enter into an agreement with the Government of Spain whereby the producer agrees to participate in and follow the Mediterranean fruit fly management program established by the Government of Spain. (c) Management program for Mediterranean fruit fly; monitoring. The Government of Spain's Mediterranean fruit fly (Ceratitis capitata) management program must be approved by APHIS, and must contain the fruit fly trapping and recordkeeping requirements specified in this paragraph. The program must also provide that clementine producers must allow APHIS inspectors access to clementine production areas in order to monitor compliance with the Mediterranean fruit fly management program. (1) Trapping and control. In areas where clementines are produced for export to the United States, traps must be placed in Mediterranean fruit fly host plants at least 6 weeks prior to harvest. Bait treatments using malathion, spinosad, or another pesticide that is approved by APHIS and the Government of Spain must be applied in the production areas at the rate specified by Spain's Medfly management program. (2) Records. The Government of Spain or its designated representative must keep records that document the fruit fly trapping and control activities in areas that produce clementines for export to the United States. All trapping and control records kept by the Government of Spain or its designated representative must be made available to APHIS upon request. (3) Compliance. If APHIS determines that an orchard is not operating in compliance with the regulations in this section, it may suspend exports of clementines from that orchard. (d) Phytosanitary certificate. Clementines from Spain must be accompanied by a phytosanitary certificate stating that the fruit meets the conditions of the Government of Spain's Mediterranean fruit fly management program and applicable APHIS regulations. (e) Labeling. Boxes in which clementines are packed must be labeled with a lot number that provides information to identify the orchard where the fruit was grown and the packinghouse where the fruit was packed. The lot number must end with the letters ``US.'' All labeling must be large enough to clearly display the required information and must be located on the outside of the boxes to facilitate inspection. (f) Pre-treatment sampling; rates of inspection. For each consignment of [[Page 25053]] clementines intended for export to the United States, prior to cold treatment, inspectors will cut and inspect 200 fruit that are randomly selected from throughout the consignment. If inspectors find a single live Mediterranean fruit fly in any stage of development during an inspection, the entire consignment of clementines will be rejected. If a live Mediterranean fruit fly in any stage of development is found in any two lots of fruit from the same orchard during the same shipping season, that orchard will be removed from the export program for the remainder of that shipping season. (g) Cold treatment. Clementines must be cold treated in accordance with part 305 of this chapter. Upon arrival of clementines at a port of entry into the United States, inspectors will examine the cold treatment data for each shipment to ensure that the cold treatment was successfully completed. If the cold treatment has not been successfully completed, the shipment will be held until appropriate remedial actions have been implemented. (h) Port of entry sampling. Clementines imported from Spain are subject to inspection by an inspector at the port of entry into the United States. At the port of first arrival, an inspector will sample and cut clementines from each consignment to detect pest infestation according to sampling rates determined by the Administrator. If a single live Mediterranean fruit fly in any stage of development is found, the consignment will be held until an investigation is completed and appropriate remedial actions have been implemented. (i) Suspension of program. If APHIS determines at any time that the safeguards contained in this section are not protecting against the introduction of Medflies into the United States, APHIS may suspend the importation of clementines and conduct an investigation into the cause of the deficiency. (j) Definitions. The following are definitions for terms used in this section: Consignment. (1) Untreated fruit. For untreated fruit, the term means one or more lots (containing no more than a combined total of 200,000 boxes of clementines) that are presented to an inspector for pre-treatment inspection. (2) Treated fruit. For treated fruit, the term means one or more lots of clementines that are imported into the United States on the same conveyance. Lot. For the purposes of this section, a number of units of clementines that are from a common origin (i.e., a single producer or a homogenous production unit \8\). --------------------------------------------------------------------------- \8\ A homogeneous production unit is a group of adjacent orchards in Spain that are owned by one or more growers who follow a homogenous production system under the same technical guidance. --------------------------------------------------------------------------- Orchard. A plot on which clementines are grown that is separately registered in the Spanish Medfly management program. Shipping season. For the purposes of this section, a shipping season is considered to include the period beginning approximately in mid-September and ending approximately in late February of the next calendar year. Sec. 319.56-35 Persimmons from the Republic of Korea. Persimmons (fruit) (Disopyros khaki) may be imported into the United States from the Republic of Korea only in accordance with this section and other applicable provisions of this subpart. (a) The production site, which is an orchard, where the persimmons are grown must have been inspected at least once during the growing season and before harvest for the following pests: Conogethes punctiferalis, Planococcus kraunhiae, Stathmopoda masinissa, and Tenuipalpus zhizhilashiviliae. (b) After harvest, the persimmons must be inspected by the Republic of Korea's national plant protection organization (NPPO) and found free of the pests listed in paragraph (a) of this section before the persimmons may be shipped to the United States; (c) Each consignment of persimmons must be accompanied by a phytosanitary certificate issued by the Republic of Korea's NPPO stating that the fruit is free of Conogethes punctiferalis, Planococcus kraunhiae, Stathmopoda masinissa, and Tenuipalpus zhizhilashiviliae. (d) If any of the pests listed in paragraph (a) of this section are detected in an orchard, exports from that orchard will be canceled until the source of infestation is determined and the infestation is eradicated. Sec. 319.56-36 Watermelon, squash, cucumber, and oriental melon from the Republic of Korea. Watermelon (Citrullus lanatus), squash (Curcurbita maxima), cucumber (Cucumis sativus), and oriental melon (Cucumis melo) may be imported into the United States from the Republic of Korea only in accordance with this paragraph and all other applicable requirements of this subpart: (a) The fruit must be grown in pest-proof greenhouses registered with the Republic of Korea's national plant protection organization (NPPO). (b) The NPPO must inspect and regularly monitor greenhouses for plant pests. The NPPO must inspect greenhouses and plants, including fruit, at intervals of no more than 2 weeks, from the time of fruit set until the end of harvest. (c) The NPPO must set and maintain McPhail traps (or a similar type with a protein bait that has been approved for the pests of concern) in greenhouses from October 1 to April 30. The number of traps must be set as follows: Two traps for greenhouses smaller than 0.2 hectare in size; three traps for greenhouses 0.2 to 0.5 hectare; four traps for greenhouses over 0.5 hectare and up to 1.0 hectare; and for greenhouses greater than 1 hectare, traps must be placed at a rate of four traps per hectare. (d) The NPPO must check all traps once every 2 weeks. If a single pumpkin fruit fly is captured, that greenhouse will lose its registration until trapping shows that the infestation has been eradicated. (e) The fruit may be shipped only from December 1 through April 30. (f) Each shipment must be accompanied by a phytosanitary certificate issued by NPPO, with the following additional declaration: ``The regulated articles in this shipment were grown in registered greenhouses as specified by 7 CFR 319.56-36.'' (g) Each shipment must be protected from pest infestation from harvest until export. Newly harvested fruit must be covered with insect-proof mesh or a plastic tarpaulin while moving to the packinghouse and awaiting packing. Fruit must be packed within 24 hours of harvesting, in an enclosed container or vehicle or in insect-proof cartons or cartons covered with insect-proof mesh or plastic tarpaulin, and then placed in containers for shipment. These safeguards must be intact when the shipment arrives at the port in the United States. Sec. 319.56-37 Grapes from the Republic of Korea. Grapes (Vitis spp.) may be imported into the United States from the Republic of Korea under the following conditions: (a) The fields where the grapes are grown must be inspected during the growing season by the Republic of Korea's national plant protection organization (NPPO). The NPPO will inspect 250 grapevines per hectare, inspecting leaves, stems, and fruit of the vines. (b) If evidence of Conogethes punctiferalis, Eupoecilia ambiguella, Sparganothis pilleriana, Stathmopoda auriferella, or Monilinia fructigena is [[Page 25054]] detected during inspection, the field will immediately be rejected, and exports from that field will be canceled until visual inspection of the vines shows that the infestation has been eradicated. (c) Fruit must be bagged from the time the fruit sets until harvest. (d) Each shipment must be inspected by the NPPO before export. For each shipment, the NPPO must issue a phytosanitary certificate with an additional declaration stating that the fruit in the shipment was found free from C. punctiferalis, E. ambiguella, S. pilleriana, S. auriferella, or M. fructigena, and Nippoptilia vitis. Sec. 319.56-38 Clementines, mandarins, and tangerines from Chile. Clementines (Citrus reticulata Blanco var. Clementine), mandarins (Citrus reticulata Blanco), and tangerines (Citrus reticulata Blanco) may be imported into the United States from Chile only under the following conditions: (a) The fruit must be accompanied by a permit issued in accordance with Sec. 319.56-3(b). (b) If the fruit is produced in an area of Chile where Mediterranean fruit fly (Ceratatis capitata) is known to occur, the fruit must be cold treated in accordance with part 305 of this chapter. Fruit for which cold treatment is required must be accompanied by documentation indicating that the cold treatment was initiated in Chile (a PPQ Form 203 or its equivalent may be used for this purpose). (c) The fruit must either be produced and shipped under the systems approach described in paragraph (d) of this section or fumigated in accordance with paragraph (e) of this section. (d) Systems approach. The fruit may be imported without fumigation for Brevipalpus chilensis if it meets the following conditions: (1) Production site registration. The production site where the fruit is grown must be registered with the national plant protection organization (NPPO) of Chile. To register, the production site must provide Chile's NPPO with the following information: Production site name, grower, municipality, province, region, area planted to each species, number of plants/hectares/species, and approximate date of harvest. Registration must be renewed annually. (2) Low prevalence production site certification. Between 1 and 30 days prior to harvest, random samples of fruit must be collected from each registered production site under the direction of Chile's NPPO. These samples must undergo a pest detection and evaluation method as follows: The fruit and pedicels must be washed using a flushing method, placed in a 20 mesh sieve on top of a 200 mesh sieve, sprinkled with a liquid soap and water solution, washed with water at high pressure, and washed with water at low pressure. The process must then be repeated. The contents of the sieves must then be placed on a petri dish and analyzed for the presence of live B. chilensis mites. If a single live B. chilensis mite is found, the production site will not qualify for certification as a low prevalence production site and will be eligible to export fruit to the United States only if the fruit is fumigated in accordance with paragraph (e) of this section. Each production site may have only one opportunity per harvest season to qualify as a low prevalence production site, and certification of low prevalence will be valid for one harvest season only. The NPPO of Chile will present a list of certified production sites to APHIS. (3) Post-harvest processing. After harvest and before packing, the fruit must be washed, rinsed in a chlorine bath, washed with detergent with brushing using bristle rollers, rinsed with a hot water shower with brushing using bristle rollers, predried at room temperature, waxed, and dried with hot air. (4) Phytosanitary inspection. The fruit must be inspected in Chile at an APHIS-approved inspection site under the direction of APHIS inspectors in coordination with the NPPO of Chile after the post- harvest processing. A biometric sample will be drawn and examined from each consignment of fruit, which may represent multiple grower lots from different packing sheds. Clementines, mandarins, or tangerines in any consignment may be shipped to the United States only if the consignment passes inspection as follows: (i) Fruit presented for inspection must be identified in the shipping documents accompanying each lot of fruit that identify the production site(s) where the fruit was produced and the packing shed(s) where the fruit was processed. This identity must be maintained until the fruit is released for entry into the United States. (ii) A biometric sample of boxes from each consignment will be selected and the fruit from these boxes will be visually inspected for quarantine pests, and a portion of the fruit will be washed and the collected filtrate will be microscopically examined for B. chilensis. (A) If a single live B. chilensis mite is found, the fruit will be eligible for importation into the United States only if it is fumigated in Chile in accordance with paragraph (e) of this section. The production site will be suspended from the low prevalence certification program and all subsequent lots of fruit from the production site of origin will be required to be fumigated as a condition of entry to the United States for the remainder of the shipping season. (B) If inspectors find evidence of any other quarantine pest, the fruit in the consignment will remain eligible for importation into the United States only if an authorized treatment for the pest is available in the PPQ Treatment Manual and the entire consignment is treated for the pest in Chile under APHIS supervision. (iii) Each consignment of fruit must be accompanied by a phytosanitary certificate issued by the NPPO of Chile that contains an additional declaration stating that the fruit in the consignment meets the conditions of Sec. 319.56-38(d). (e) Approved fumigation. Clementines, mandarins, or tangerines that do not meet the conditions of paragraph (d) of this section may be imported into the United States if the fruit is fumigated either in Chile or at the port of first arrival in the United States with methyl bromide for B. chilensis in accordance with part 305 of this chapter. An APHIS inspector will monitor the fumigation of the fruit and will prescribe such safeguards as may be necessary for unloading, handling, and transportation preparatory to fumigation. The final release of the fruit for entry into the United States will be conditioned upon compliance with prescribed safeguards and required treatment. (f) Trust fund agreement. Clementines, mandarins, and tangerines may be imported into the United States under this section only if the NPPO of Chile has entered into a trust fund agreement with APHIS in accordance with Sec. 319.56-6. Sec. 319.56-39 Fragrant pears from China. Fragrant pears may be imported into the United States from China only under the following conditions: (a) Origin, growing, and harvest conditions. (1) The pears must have been grown in the Korla region of Xinjiang Province in a production site that is registered with the national plant protection organization of China. (2) All propagative material introduced into a registered production site must be certified free of the pests listed in this section by the national plant protection organization of China. (3) Within 30 days prior to harvest, the national plant protection [[Page 25055]] organization of China or officials authorized by the national plant protection organization of China must inspect the registered production site for signs of pest infestation and allow APHIS to monitor the inspections. The national plant protection organization of China must provide APHIS with information on pest detections and pest detection practices, and APHIS must approve the pest detection practices. (4) If any of the quarantine pests listed in this section are found during the pre-harvest inspection or at any other time, the national plant protection organization of China must notify APHIS immediately. (i) Upon detection of Oriental fruit fly (Bactrocera dorsalis), APHIS may reject the lot or consignment and may prohibit the importation into the United States of fragrant pears from China until an investigation is conducted and APHIS and the national plant protection organization of China agree that appropriate remedial action has been taken. (ii) Upon detection of peach fruit borer (Carposina sasaki), yellow peach moth (Conogethes punctiferalis), apple fruit moth (Cydia inopinata), Hawthorn spider mite (Tetranychus viennensis), red plum maggot (Cydia funebrana), brown rot (Monilinia fructigena), Asian pear scab (Venturia nashicola), pear trellis rust (Gymnosporangium fuscum), Asian pear black spot (Alternaria spp.), or phylloxeran (Aphanostigma sp. poss. jackusiensis), APHIS may reject the lot or consignment and may prohibit the importation into the United States of fragrant pears from the production site for the season. The exportation to the United States of fragrant pears from the production site may resume in the next growing season if an investigation is conducted and APHIS and the national plant protection organization of China agree that appropriate remedial action has been taken. If any of these pests is detected in more than one registered production site, APHIS may prohibit the importation into the United States of fragrant pears from China until an investigation is conducted and APHIS and the national plant protection organization of China agree that appropriate remedial action has been taken. (5) After harvest, the national plant protection organization of China or officials authorized by the national plant protection organization of China must inspect the pears for signs of pest infestation and allow APHIS to monitor the inspections. (6) Upon detection of large pear borer (Numonia pivivorella), pear curculio (Rhynchites fovepessin), or Japanese apple curculio (R. heros), APHIS may reject the lot or consignment. (b) Packing requirements. (1) The fragrant pears must be packed in cartons that are labeled in accordance with Sec. 319.56-5(e). (2) The fragrant pears must be held in a cold storage facility while awaiting export. If fruit from unregistered production sites are stored in the same facility, the fragrant pears must be isolated from that other fruit. (c) Shipping requirements. (1) The fragrant pears must be shipped in insect-proof containers and all pears must be safeguarded during transport to the United States in a manner that will prevent pest infestation. (2) The fragrant pears may be imported only under a permit issued by APHIS in accordance with Sec. 319.56-3(b). (3) Each shipment of pears must be accompanied by a phytosanitary certificate issued by the national plant protection organization of China stating that the conditions of this section have been met and that the shipment has been inspected and found free of the pests listed in this section. Sec. 319.56-40 Peppers from certain Central American countries. Fresh peppers (Capsicum spp.) may be imported into the United States from Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua only under the following conditions: (a) For peppers of the species Capsicum annuum, Capsicum frutescens, Capsicum baccatum, and Capsicum chinense from areas free of Mediterranean fruit fly (Medfly), terms of entry are as follows: (1) The peppers must be grown and packed in an area that has been determined by APHIS to be free of Mediterranean fruit fly (Medfly) in accordance with the procedures described in Sec. 319.56-5 of this subpart. (2) A pre-harvest inspection of the growing site must be conducted by the national plant protection organization (NPPO) of the exporting country for the weevil Faustinus ovatipennis, pea leafminer, tomato fruit borer, banana moth, lantana mealybug, passionvine mealybug, melon thrips, the rust fungus Puccinia pampeana, Andean potato mottle virus, and tomato yellow mosaic virus, and if these pests are found to be generally infesting the growing site, the NPPO may not allow export from that production site until the NPPO has determined that risk mitigation has been achieved. (3) The peppers must be packed in insect-proof cartons or containers or covered with insect-proof mesh or plastic tarpaulin at the packinghouse for transit to the United States. These safeguards must remain intact until arrival in the United States. (4) The exporting country's NPPO is responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of peppers must be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, ``These peppers were grown in an area recognized to be free of Medfly and the shipment has been inspected and found free of the pests listed in the requirements.'' (b) For peppers of the species Capsicum annuum, Capsicum frutescens, Capsicum baccatum, Capsicum chinense, and Capsicum pubescens from areas in which Medfly is considered to exist: (1) The peppers must be grown in approved production sites registered with the NPPO of the exporting country. Initial approval of the production sites will be completed jointly by the exporting country's NPPO and APHIS. The exporting country's NPPO will visit and inspect the production sites monthly, starting 2 months before harvest and continuing through until the end of the shipping season. APHIS may monitor the production sites at any time during this period. (2) Pepper production sites must consist of pest-exclusionary greenhouses, which must have self-closing double doors and have all other openings and vents covered with 1.6 (or less) mm screening. (3) Registered sites must contain traps for the detection of Medfly both within and around the production site. (i) Traps with an approved protein bait must be placed inside the greenhouses at a density of four traps per hectare, with a minimum of two traps per greenhouse. Traps must be serviced on a weekly basis. (ii) If a single Medfly is detected inside a registered production site or in a consignment, the registered production site will lose its ability to export peppers to the United States until APHIS and the exporting country's NPPO mutually determine that risk mitigation is achieved. (iii) Medfly traps with an approved lure must be placed inside a buffer area 500 meters wide around the registered production site, at a density of 1 trap per 10 hectares and a minimum of 10 traps. These traps must be checked at least every 7 days. At least one of these traps must be near the greenhouse. Traps must be set for at least 2 months before export and trapping must continue to the end of the harvest. [[Page 25056]] (iv) Capture of 0.7 or more Medflies per trap per week will delay or suspend the harvest, depending on whether harvest has begun, for consignments of peppers from that production site until APHIS and the exporting country's NPPO can agree that the pest risk has been mitigated. (v) The greenhouse must be inspected prior to harvest for the weevil Faustinus ovatipennis, pea leafminer, tomato fruit borer, banana moth, lantana mealybug, passionvine mealybug, melon thrips, the rust fungus Puccinia pampeana, Andean potato mottle virus, and tomato yellow mosaic virus. If any of these pests, or other quarantine pests, are found to be generally infesting the greenhouse, export from that production site will be halted until the exporting country's NPPO determines that the pest risk has been mitigated. (4) The exporting country's NPPO must maintain records of trap placement, checking of traps, and any Medfly captures. The exporting country's NPPO must maintain an APHIS-approved quality control program to monitor or audit the trapping program. The trapping records must be maintained for APHIS' review. (5) The peppers must be packed within 24 hours of harvest in a pest-exclusionary packinghouse. The peppers must be safeguarded by an insect-proof mesh screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. Peppers must be packed in insect-proof cartons or containers, or covered with insect-proof mesh or plastic tarpaulin, for transit to the United States. These safeguards must remain intact until arrival in the United States or the consignment will be denied entry into the United States. (6) During the time the packinghouse is in use for exporting peppers to the United States, the packinghouse may accept peppers only from registered approved production sites. (7) The exporting country's NPPO is responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of peppers must be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, ``These peppers were grown in an approved production site and the shipment has been inspected and found free of the pests listed in the requirements.'' The shipping box must be labeled with the identity of the production site. (c) For peppers of the species Capsicum pubescens from areas in which Mexican fruit fly (Mexfly) is considered to exist: (1) The peppers must be grown in approved production sites registered with the NPPO of the exporting country. Initial approval of the production sites will be completed jointly by the exporting country's NPPO and APHIS. The exporting country's NPPO must visit and inspect the production sites monthly, starting 2 months before harvest and continuing through until the end of the shipping season. APHIS may monitor the production sites at any time during this period. (2) Pepper production sites must consist of pest-exclusionary greenhouses, which must have self-closing double doors and have all other openings and vents covered with 1.6 (or less) mm screening. (3) Registered sites must contain traps for the detection of Mexfly both within and around the production site. (i) Traps with an approved protein bait must be placed inside the greenhouses at a density of four traps per hectare, with a minimum of two traps per greenhouse. Traps must be serviced on a weekly basis. (ii) If a single Mexfly is detected inside a registered production site or in a consignment, the registered production site will lose its ability to ship under the systems approach until APHIS and the exporting country's NPPO mutually determine that risk mitigation is achieved. (iii) Mexfly traps with an approved protein bait must be placed inside a buffer area 500 meters wide around the registered production site, at a density of 1 trap per 10 hectares and a minimum of 10 traps. These traps must be checked at least every 7 days. At least one of these traps must be near the greenhouse. Traps must be set for at least 2 months before export, and trapping must continue to the end of the harvest. (iv) Capture of 0.7 or more Mexflies per trap per week will delay or suspend the harvest, depending on whether harvest has begun, for consignments of peppers from that production site until APHIS and the exporting country's NPPO can agree that the pest risk has been mitigated. (v) The greenhouse must be inspected prior to harvest for the weevil Faustinus ovatipennis, pea leafminer, tomato fruit borer, banana moth, lantana mealybug, passionvine mealybug, melon thrips, the rust fungus Puccinia pampeana, Andean potato mottle virus, and tomato yellow mosaic virus. If any of these pests, or other quarantine pests, are found to be generally infesting the greenhouse, export from that production site will be halted until the exporting country's NPPO determines that the pest risk has been mitigated. (4) The exporting country's NPPO must maintain records of trap placement, checking of traps, and any Mexfly captures. The exporting country's NPPO must maintain an APHIS-approved quality control program to monitor or audit the trapping program. The trapping records must be maintained for APHIS's review. (5) The peppers must be packed within 24 hours of harvest in a pest-exclusionary packinghouse. The peppers must be safeguarded by an insect-proof mesh screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. Peppers must be packed in insect-proof cartons or containers, or covered with insect-proof mesh or plastic tarpaulin, for transit to the United States. These safeguards must remain intact until arrival in the United States or the consignment will be denied entry into the United States. (6) During the time the packinghouse is in use for exporting peppers to the United States, the packinghouse may accept peppers only from registered approved production sites. (7) The exporting country's NPPO is responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of peppers must be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, ``These peppers were grown in an approved production site and the shipment has been inspected and found free of the pests listed in the requirements.'' The shipping box must be labeled with the identity of the production site. Sec. 319.75-2 [Amended] 13. In Sec. 319.75-2, footnote 1 would be amended by removing the citation ``7 CFR 319.56 et seq.'' and adding the words ``Subpart-- Fruits and Vegetables of this part'' in its place. PART 352--PLANT QUARANTINE SAFEGUARD REGULATIONS 14. The authority citation for part 352 would continue to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3. 15. In Sec. 352.30, paragraphs (e) and (f) would be revised to read as follows: Sec. 352.30 Administrative instructions: Certain oranges, tangerines, and grapefruit from Mexico. * * * * * (e) Untreated fruit from certain municipalities in Sonora, Mexico. Oranges, tangerines, and grapefruit in [[Page 25057]] transit to foreign countries may be imported from certain municipalities in Sonora, Mexico, that meet the criteria of Sec. 319.56-5 for freedom from fruit flies in accordance with the applicable conditions in part 319 of this chapter. (f) Treated fruit. Oranges, tangerines, and grapefruit from Mexico that have been treated in Mexico in accordance with part 305 of this chapter may be moved through the United States ports for exportation in accordance with the regulations in part 319 of this chapter. * * * * * Done in Washington, DC, this 19th day of April 2006. Charles D. Lambert, Acting Under Secretary for Marketing and Regulatory Programs. [FR Doc. 06-3897 Filed 4-26-06; 8:45 am] BILLING CODE 3410-34-C

usgpo

2024-10-08T14:08:35.429758

FR

FR-2006-04-27/FR-2006-04-27-ReaderAids

Federal Register Volume 71 Issue 81 (April 27, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 81 (Thursday, April 27, 2006)] [Reader Aids] [Pages i-v] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] Reader Aids Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Reader Aids Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Reader Aids Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Reader Aids [[Page i]] CUSTOMER SERVICE AND INFORMATION ---------------------------------------------------------- Federal Register/Code of Federal Regulations General Information, indexes and other finding 202-741-6000 aids Laws 741-6000 Presidential Documents Executive orders and proclamations 741-6000 The United States Government Manual 741-6000 Other Services Electronic and on-line services (voice) 741-6020 Privacy Act Compilation 741-6064 Public Laws Update Service (numbers, dates, etc.) 741-6043 TTY for the deaf-and-hard-of-hearing 741-6086 ========================================================== ELECTRONIC RESEARCH World Wide Web Full text of the daily Federal Register, CFR and other publications is located at: http://www.gpoaccess.gov/nara/ index.html Federal Register information and research tools, including Public Inspection List, indexes, and links to GPO Access are located at: http://www.archives. gov/federal_register/ E-mail FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is an open e-mail service that provides subscribers with a digital form of the Federal Register Table of Contents. The digital form of the Federal Register Table of Contents includes HTML and PDF links to the full text of each document. To join or leave, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. PENS (Public Law Electronic Notification Service) is an e- mail service that notifies subscribers of recently enacted laws. To subscribe, go to http://listserv.gsa.gov/archives/ publaws-l.html and select Join or leave the list (or change settings); then follow the instructions. FEDREGTOC-L and PENS are mailing lists only. We cannot respond to specific inquiries. Reference questions. Send questions and comments about the Federal Register system to: [email protected] The Federal Register staff cannot interpret specific documents or regulations. ========================================================== FEDERAL REGISTER PAGES AND DATE, APRIL ---------------------------------------------------------- 16477-16690............................................. 3 16691-16972............................................. 4 16973-17334............................................. 5 17335-17690............................................. 6 17691-17966............................................. 7 17967-18160.............................................10 18161-18588.............................................11 18589-19096.............................................12 19097-19426.............................................13 19427-19620.............................................14 19621-19804.............................................17 19805-19982.............................................18 19983-20334.............................................19 20335-20516.............................................20 20517-20862.............................................21 20863-23854.............................................24 23855-24550.............................................25 24551-24802.............................................26 24803-25058.............................................27 6 ---------------------------------------------------------- CFR PARTS AFFECTED DURING APRIL ---------------------------------------------------------- At the end of each month, the Office of the Federal Register publishes separately a List of CFR Sections Affected (LSA), which lists parts and sections affected by documents published since the revision date of each title. 3 CFR Proclamations: 7992.................................................16685 7993.................................................16687 7994.................................................16689 7995.................................................16969 7996.................................................16971 7997.................................................18157 7998.................................................18159 7999.................................................18585 8000.................................................18587 8001.................................................19983 8002.................................................20517 8003.................................................20863 8004.................................................20865 8005.................................................24547 8006.................................................24549 Executive Orders: 13398................................................20519 Administrative Orders; Memorandums: Memorandum of May 9, 2002 (Superseded by Memorandum of April 17, 2006)........................20333 Memorandum of April 6, 2006..........................19427 Memorandum of April 17, 2006.........................20333 5 CFR 213..................................................18161 1216.................................................17967 Proposed Rules: 875..................................................19459 6 CFR 5....................................................20523 Proposed Rules: 5....................................................16519 7 CFR 56...................................................20288 319..................................................19097 330..................................................16973 905..................................................16976 916..................................................17970 917..................................................17970 922..................................................16979 923..................................................17979 930..................................................16982 982..................................................18164 985..................................................16986 1033.................................................20335 1412.................................................17982 1437.................................................19805 1430.................................................19621 Proposed Rules: 28...................................................20350 58...................................................20351 205...........................................19131, 24820 301..................................................16711 305..................................................25010 319..................................................25010 330..................................................20030 352..................................................25010 868..................................................18231 984..................................................20902 1290.................................................20353 1496.................................................17767 8 CFR 204..................................................19805 Proposed Rules: 103..................................................20357 299..................................................20357 9 CFR 77...................................................24803 93...................................................24806 381..................................................20867 Proposed Rules: 93...................................................19134 94...................................................20030 317..................................................20041 381..................................................20041 390..................................................17384 442..................................................20041 10 CFR 72...................................................19806 110...........................................19102, 20336 300..................................................20784 431..................................................24972 Proposed Rules: 72...................................................19831 110..................................................19135 431..................................................23876 626..................................................20909 11 CFR 100..................................................18589 110..................................................18589 114..................................................18589 12 CFR 201..................................................16991 303..................................................20524 308..................................................20524 312..................................................20524 336..................................................20524 347..................................................20524 348..................................................20524 357..................................................20524 362..................................................20524 363..................................................20524 364..................................................20524 366..................................................20524 367..................................................20524 528..................................................19810 546..................................................19810 552..................................................19810 561..................................................19810 563..................................................19810 [[Page ii]] 563b.................................................19810 563e.................................................18614 570..................................................19810 574..................................................19810 575..................................................19810 583..................................................19810 611..................................................18168 612..................................................18168 614..................................................18168 615..................................................18168 618..................................................18168 619..................................................18168 620..................................................18168 630..................................................18168 Ch. VII..............................................24551 Ch. XVII.............................................19985 707..................................................24568 Proposed Rules: 652..................................................24613 655..................................................24613 915..................................................19832 13 CFR 121..................................................19812 14 CFR 23...................................................17335 25..............................18169, 18183, 18192, 24808 39........16477, 16691, 16992, 16994, 17691, 17694, 17696, 17698, 17700, 17983, 18194, 18197, 18199, 18201, 18205, 18207, 18210, 18618, 19104, 19107, 19108, 19110, 19114, 19624, 19627, 19628, 19788, 19986, 19994, 19998, 20001, 20528, 20530, 20531, 24571, 24573, 24576, 24808 71........16994, 16995, 16997, 16998, 18213, 19117, 19633, 19634, 19813, 19814, 20871, 20872, 20873, 20874, 20875, 20876, 24812 97..............................16999, 17342, 19635, 19636 121..................................................17000 Proposed Rules: 23...................................................20368 25.....................................18236, 19928, 20574 39........16716, 16721, 16725, 17033, 17035, 17037, 18237, 18239, 18242, 18244, 18247, 18249, 18251, 18253, 18686, 19136, 19138, 19140, 19142, 19144, 19661, 19662, 19663, 19835, 20042, 20593, 20595, 20597, 20599, 20915, 20919, 24613 71........17039, 17385, 17386, 17387, 17388, 17389, 18254, 19148, 20374 121.............................16678, 18255, 19928, 20574 129...........................................19928, 20574 382..................................................19838 15 CFR 710..................................................24918 711..................................................24918 712..................................................24918 713..................................................24918 714..................................................24918 715..................................................24918 716..................................................24918 717..................................................24918 718..................................................24918 719..................................................24918 720..................................................24918 721..................................................24918 722..................................................24918 730..................................................20876 732..................................................20876 734..................................................20876 738..................................................20876 740..................................................20876 742..................................................20876 743..................................................20876 746..................................................20876 748..................................................20876 750..................................................20876 752..................................................20876 762..................................................20876 770..................................................20876 772..................................................20876 774..................................................20876 902..................................................17985 960..................................................24474 Proposed Rules: 700..................................................19666 16 CFR Proposed Rules: 305..................................................18023 437..................................................19054 1214.................................................18030 17 CFR 202..................................................20340 279..................................................17344 Proposed Rules: 41...................................................18030 240..................................................18030 18 CFR 39...................................................19814 342..................................................18411 Proposed Rules: 1310.................................................19460 19 CFR 101..................................................20005 122..................................................20005 Proposed Rules: 24...................................................20922 111..................................................20922 20 CFR 404..................................................24812 405..................................................17990 21 CFR 510..................................................17701 520...........................................17701, 19429 524..................................................16481 558....................................17702, 20533, 24814 610..................................................20533 Proposed Rules: 201..................................................18039 211..................................................18039 878..................................................17390 22 CFR 34...................................................16481 62...................................................16696 120..................................................20534 121..................................................20534 122..................................................20534 123..................................................20534 124..................................................20534 125..................................................20534 126..................................................20534 127..................................................20534 128..................................................20534 129..................................................20534 130..................................................20534 Proposed Rules: 62...................................................17768 23 CFR 1313.................................................20555 1327.................................................19823 Proposed Rules: 634..................................................20925 635..................................................19667 655..................................................23877 773..................................................17040 24 CFR 207..................................................18152 3280.................................................19638 25 CFR 517..................................................20006 26 CFR 1.................17990, 18623, 19117, 23855, 23856, 24516 602...........................................17990, 24516 Proposed Rules: 1.................18053, 19669, 20044, 20376, 23882, 24543 27 CFR 1....................................................16918 4....................................................16918 5....................................................16918 6....................................................16918 7....................................................16918 8....................................................16918 9....................................................16918 10...................................................16918 11...................................................16918 12...................................................16918 13...................................................16918 16...................................................16918 17...................................................16918 18...................................................16918 19...................................................16918 20...................................................16918 21...................................................16918 22...................................................16918 24...................................................16918 25...................................................16918 26...................................................16918 27...................................................16918 28...................................................16918 29...................................................16918 30...................................................16918 31...................................................16918 40...................................................16918 44...................................................16918 45...................................................16918 46...................................................16918 53...................................................16918 70...................................................16918 71...................................................16918 28 CFR 0....................................................19826 Proposed Rules: 540..................................................16520 29 CFR 11...................................................16664 500..................................................16664 501..................................................16664 516..................................................16664 519..................................................16664 531..................................................16664 536..................................................16664 547..................................................16664 548..................................................16664 549..................................................16664 550..................................................16664 552..................................................16664 570..................................................16664 1910.................................................16669 1913.................................................16669 1915.................................................16669 1926.................................................16669 2520.................................................20820 2550.................................................20820 2578.................................................20820 4022.................................................19429 4044.................................................19429 30 CFR 28...................................................16664 48...................................................16664 50...................................................16664 56...................................................16664 57...................................................16664 70...................................................16664 71...................................................16664 72...................................................16664 75...................................................16664 77...................................................16664 90...................................................16664 250....................................16859, 19640, 23858 Proposed Rules: 205..................................................17774 942..................................................17682 943..................................................20602 950..................................................20604 31 CFR 500..................................................17345 32 CFR 64...................................................19827 578..................................................17276 706...........................................17346, 17347 2004.................................................18007 Proposed Rules: 505..................................................24494 33 CFR 100...............16488, 17703, 18213, 19431, 19646, 20011 117.......16489, 16491, 16492, 17348, 17350, 18623, 19119, 20573, 23864 147..................................................19431 165.......19119, 19121, 19431, 19648, 19650, 20011, 20013, 24578, 24580 Proposed Rules: 100......................16525, 18055, 19670, 19672, 23883 117...............16527, 16529, 17394, 17397, 19150, 20376 165...............16531, 18256, 19152, 19460, 19462, 19465 34 CFR Proposed Rules: 76...................................................24824 36 CFR 251...........................................16614, 16622 [[Page iii]] Proposed Rules: Ch. I................................................16534 7....................................................17777 1193.................................................19839 1194.................................................19839 37 CFR Proposed Rules: 1....................................................17399 201..................................................24829 38 CFR 20...................................................18008 21...................................................24582 39 CFR Proposed Rules: 111..................................................19840 3001.................................................20930 40 CFR 9....................................................24817 18...................................................16699 51............................................17003, 17705 52................18216, 18219, 18624, 18626, 19124, 19432 63........17352, 17712, 17720, 17729, 17738, 19126, 19435, 19652, 20446, 20895 65...................................................20446 80...................................................16492 81...................................................17750 82...................................................18219 86...................................................24817 93...................................................17003 174..................................................24582 180.......17009, 17014, 18628, 18635, 18642, 19436, 19441, 24582, 24586, 24590 194..................................................18010 260..................................................16862 261..................................................16862 264..................................................16862 265..................................................16862 266..................................................16862 268..................................................16862 270..................................................16862 271....................................16862, 19442, 23864 272..................................................20341 300..................................................20016 600..................................................24817 761..................................................16703 799..................................................18650 Proposed Rules: 18...................................................16728 50...................................................16534 51............................................16534, 17047 52.........17050, 18258, 18689, 19155, 19467, 24831, 24834 60...................................................17401 63.....................................19155, 19674, 20931 80...................................................16535 82............................................18259, 18262 93...................................................17047 180.............................18689, 20045, 20048, 24615 260..................................................19842 261..................................................19842 262..................................................19842 263..................................................19842 264..................................................19842 265..................................................19842 271.............................19470, 19471, 19842, 23885 278..................................................16729 300...........................................20052, 24627 721..................................................18055 745..................................................17409 41 CFR 102-37...............................................23867 102-39...............................................20900 301-12...............................................24596 301-13...............................................24596 301-51...............................................24597 301-70...............................................24596 301-74...............................................24597 42 CFR 410..................................................17021 412..................................................18654 413..................................................18654 420..................................................20754 424..................................................20754 489..................................................20754 498..................................................20754 Proposed Rules: 405..................................................17052 409..................................................23996 410..................................................23996 412...........................................17052, 23996 413..................................................23996 422..................................................17052 424..................................................23996 485..................................................23996 489...........................................17052, 23996 43 CFR 5....................................................19127 10...................................................16500 423..................................................19790 429..................................................19790 Proposed Rules: 2800.................................................24836 2880.................................................24836 44 CFR 64.....................................16704, 16708, 19658 Proposed Rules: 67...................................................16749 46 CFR 401..................................................16501 47 CFR 63...................................................18667 64...................................................18667 73................17030, 17031, 17032, 24598, 24599, 24600 Proposed Rules: 1....................................................17410 64...................................................24634 73.......................18693, 18694, 20059, 20060, 24635 90...................................................17786 48 CFR Ch. 1.........................................20294, 20309 2......................................20295, 20298, 20299 5.............................................20295, 20299 7.............................................20295, 20299 12...................................................20301 14...................................................20299 19.....................................20303, 20304, 20309 22...................................................20301 25............................................20305, 20306 37...................................................20299 52.........20299, 20301, 20303, 20304, 20305, 20306, 20308 212..................................................18667 222..................................................18669 225..................................................18671 229..................................................18671 232..................................................18671 252..................................................18671 950..................................................19829 Proposed Rules: 225...........................................18694, 18695 252...........................................18695, 20061 49 CFR 171..................................................23869 172..................................................23869 173..................................................23869 234..................................................19129 523...........................................17566, 19449 533...........................................17566, 19449 537...........................................17566, 19449 541..................................................20022 571....................................17752, 18673, 20026 Proposed Rules: 544..................................................16541 571..................................................20932 594..................................................20061 604..................................................18056 50 CFR 17..............................19244, 19452, 19954, 24916 223....................................17757, 19241, 24776 229....................................17358, 17360, 24776 648....................................19348, 20900, 23871 660....................................17985, 18227, 24601 665..................................................17985 679.......17362, 18021, 18230, 18684, 19129, 19829, 20346, 23874 Proposed Rules: 10...................................................20168 13...................................................20168 17........18456, 19157, 19158, 20168, 20607, 20625, 20636, 20637, 23886, 24916 20...................................................18562 23...................................................20168 91...................................................18697 216..................................................17790 222..................................................19675 223...........................................19675, 20941 229..................................................20941 622...........................................17062, 24635 680...........................................20378, 20966 [[Page iv]] REMINDERS The items in this list were editorially compiled as an aid to Federal Register users. Inclusion or exclusion from this list has no legal significance. RULES GOING INTO EFFECT APRIL 27, 2006 COMMERCE DEPARTMENT Industry and Security Bureau Chemical Weapons Convention regulations; published 4-27-06 ENVIRONMENTAL PROTECTION AGENCY OMB approvals; technical amendment; published 4-27-06 HEALTH AND HUMAN SERVICES DEPARTMENT Food and Drug Administration Animal drugs, feeds, and related products: Lasalocid and Chlortetracycline; published 4-27-06 SOCIAL SECURITY ADMINISTRATION Social security benefits: Federal old age, survivors, and disability insurance-- Widow's and widower's benefits; requirements and applications filing; published 4-27-06 TRANSPORTATION DEPARTMENT Navigation of foreign civil aircraft within United States; policy determination request; published 3-28-06 TRANSPORTATION DEPARTMENT Federal Aviation Administration Airworthiness directives: Lycoming Engines; published 3-23-06 MD Helicopters, Inc.; published 4-27-06 Turbomeca S.A.; published 3-23-06 COMMENTS DUE NEXT WEEK AGRICULTURE DEPARTMENT Agricultural Marketing Service Cotton classing, testing, and standards: Classification services to growers; 2006 user fees; comments due by 5-5-06; published 4-20-06 [FR E6-05940] National Dairy Promotion and Research Program: Regulatory Flexibility Act; Section 610 review; comments due by 5-1- 06; published 2-28-06 [FR 06-01854] AGRICULTURE DEPARTMENT Commodity Credit Corporation Export programs: Commodities procurement for foreign donation; Open for comments until further notice; published 12-16-05 [FR E5-07460] AGRICULTURE DEPARTMENT Food and Nutrition Service Child nutrition programs: School Breakfast Program-- Severe need assistance; comments due by 5-1-06; published 11-2-05 [FR 05-21785] AGRICULTURE DEPARTMENT Rural Housing Service Direct single family housing loans and grants; comments due by 5-5-06; published 3-6-06 [FR 06-02072] COMMERCE DEPARTMENT Economic Analysis Bureau International services surveys: BE-577; direct investment abroad; transactions of U.S. reporter with foreign affiliate; quarterly survey; comments due by 5-1-06; published 3-1-06 [FR 06-01877] COMMERCE DEPARTMENT National Oceanic and Atmospheric Administration Endangered and threatened species: Sea turtle conservation-- Fishing activities modification; comments due by 5-2-06; published 4-17-06 [FR E6-05686] Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone-- Bering Sea and Aleutian Islands king and tanner crabs; comments due by 5-5-06; published 3-21-06 [FR 06-02705] Caribbean, Gulf, and South Atlantic fisheries-- Gulf red grouper; comments due by 5-1-06; published 3-31-06 [FR E6-04748] Northeastern United States fisheries-- Northeast multispecies; comments due by 5-1-06; published 3-30-06 [FR E6-04665] COMMERCE DEPARTMENT Patent and Trademark Office Patent cases: Continuing applications, continued examination practice requests, and applications containing patentably indistinct claims; comments due by 5-3-06; published 1-3-06 [FR 05-24528] Patent applications; claims examination; comments due by 5-3-06; published 1-3-06 [FR 05-24529] Practice and procedure: Trademark Trial and Appeal Board rules; miscellaneous changes; comments due by 5-4-06; published 3-27-06 [FR 06-02875] ENVIRONMENTAL PROTECTION AGENCY Air pollution control; new motor vehicles and engines: Tier 2 motor vehicles; light-duty diesel emissions; comments due by 5-1-06; published 3-30-06 [FR 06-02979] Air programs: Ambient air quality standards, national-- General conformity; PM2.5 de minimis emission levels; comments due by 5-5-06; published 4-5-06 [FR 06-03310] General conformity; PM2.5 de minimis emission levels; comments due by 5-5-06; published 4-5-06 [FR 06-03311] Fuel and fuel additives--- Gasoline and diesel fuel test methods; comments due by 5-3-06; published 4-3-06 [FR 06-03133] Fuels and fuel additives-- Gasoline and diesel fuel test methods; comments due by 5-3-06; published 4-3-06 [FR 06-03132] Air quality implementation plans: Preparation, adoption, submittal-- Air emissions reporting requirements; comments due by 5-3-06; published 1-3-06 [FR 05-24614] Air quality implementation plans; approval and promulgation; various States: Iowa; comments due by 5-1-06; published 3-30-06 [FR 06-03032] Maryland; comments due by 5-1-06; published 3-31-06 [FR 06-03107] Virginia; comments due by 5-5-06; published 4-5-06 [FR E6-04940] Research and development: Environmental protection research fellowships and special research consultants for environmental protection; establishment; comments due by 5-4-06; published 4-4-06 [FR 06-03204] Solid waste: Granular mine tailings in asphalt concrete and Portland cement concrete in transportation construction projects; management criteria; comments due by 5-4-06; published 4-4-06 [FR 06-03104] HEALTH AND HUMAN SERVICES DEPARTMENT Food and Drug Administration Color additives: Cochineal extract and carmine; declaration requirements; comments due by 5-1-06; published 1-30-06 [FR E6-01104] Human drugs: Prescription drug marketing; blood derivatives distribution by registered blood establishments qualifying as health care entities; comments due by 5-2-06; published 2-1-06 [FR E6-01225] HOMELAND SECURITY DEPARTMENT Coast Guard Regattas and marine parades: 2006 Rappahannock River Boaters Association Spring and Fall Radar Shootout; comments due by 5-3-06; published 4-3-06 [FR E6-04788] Correction; comments due by 5-3-06; published 4-10-06 [FR E6- 05208] INTERIOR DEPARTMENT Fish and Wildlife Service Endangered and threatened species: Critical habitat designations-- [[Page v]] Canada lynx; contiguous United States distinct population segment; comments due by 4-30-06; published 2-16-06 [FR 06-01443] INTERIOR DEPARTMENT National Park Service National Park System: Glacier Bay National Park, AK; vessel management; comments due by 5- 2-06; published 3-3-06 [FR 06-02000] PERSONNEL MANAGEMENT OFFICE Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002; Title II implementation: Reporting and best practices; comments due by 5-1-06; published 1-25- 06 [FR E6-00933] Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002; implementation: Title II reporting and best practices requirements; comments due by 5-1-06; published 3-31-06 [FR 06-03166] POSTAL RATE COMMISSION Practice and procedure: Express Mail Second Day Service; classification change; comments due by 5-3-06; published 4-24-06 [FR E6-06104] SOCIAL SECURITY ADMINISTRATION Medicare subsidies: Medicare Part B income-related monthly adjustment amount; comments due by 5-2-06; published 3-3-06 [FR 06-02075] Social security benefits and supplemental security income: Federal old age, survivors, and disability insurance, and aged, blind, and disabled-- Optometrists acceptability as medical sources for establishing medically determinable impairments; comments due by 5-1-06; published 3-1-06 [FR E6-02852] TRANSPORTATION DEPARTMENT Federal Aviation Administration Airworthiness directives: Airbus; comments due by 5-4-06; published 4-4-06 [FR E6-04825] BAE Systems (Operations) Ltd.; comments due by 5-1-06; published 4-5- 06 [FR E6-04927] Boeing; comments due by 5-1-06; published 4-4-06 [FR E6-04827] Eurocopter France; comments due by 5-1-06; published 2-28-06 [FR E6- 02759] Mitsubishi Heavy Industries; comments due by 5-2-06; published 3-22- 06 [FR E6-04123] Rolls-Royce plc; comments due by 5-1-06; published 3-1-06 [FR 06- 01827] Sicma Areo Seat; comments due by 5-1-06; published 3-1-06 [FR E6- 02849] Airworthiness standards: Aircraft electrical and electronic systems; high-intensity radiated fields protection; comments due by 5-2-06; published 2-1-06 [FR 06-00895] Aircraft engine standards for engine life-limited parts; comments due by 5-3-06; published 2-2-06 [FR 06-00950] VOR Federal airways; comments due by 5-1-06; published 3-17-06 [FR E6- 03852] __________________________________________________________ LIST OF PUBLIC LAWS __________________________________________________________ This is a continuing list of public bills from the current session of Congress which have become Federal laws. It may be used in conjunction with ``P L U S'' (Public Laws Update Service) on 202-741-6043. This list is also available online at http://www.archives.gov/federal- register/laws.html. The text of laws is not published in the Federal Register but may be ordered in ``slip law'' (individual pamphlet) form from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 (phone, 202-512- 1808). The text will also be made available on the Internet from GPO Access at http://www.gpoaccess.gov/ plaws/index.html. Some laws may not yet be available. H.R. 4979/P.L. 109-218 Local Community Recovery Act of 2006 (Apr. 20, 2006; 120 Stat. 333) Last List April 17, 2006 __________________________________________________________ Public Laws Electronic Notification Service (PENS) __________________________________________________________ PENS is a free electronic mail notification service of newly enacted public laws. 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usgpo

2024-10-08T14:08:35.446607

FR

FR-2006-04-24/FR-2006-04-24-FrontMatter

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Contents] [Pages I-VIII] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] ___________________________________________________________ FEDERAL REGISTER Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Contents Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Contents Monday Apr. 24, 2006 Book 1 of 4 Books Pages!20863-22266 [[Page i]] 9 [[Page ii]] The FEDERAL REGISTER (ISSN 0097-6326) is published daily, Monday through Friday, except official holidays, by the Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408, under the Federal Register Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Committee of the Federal Register (1 CFR Ch. I). The Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official edition. 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SUBSCRIPTIONS AND COPIES ---------------------------------------------------------------- PUBLIC Subscriptions: Paper or fiche 202-512-1800 Assistance with public subscriptions 202-512-1806 General online information 202-512-1530; 1- 888-293-6498 Single copies/back copies: Paper or fiche 202-512-1800 Assistance with public single copies 1-866-512-1800 (Toll-Free) FEDERAL AGENCIES Subscriptions: Paper or fiche 202-741-6005 Assistance with Federal agency subscriptions 202-741-6005 ------------------------------------------------------------------------ ------------------------------------------------------------------------ FEDERAL REGISTER WORKSHOP THE FEDERAL REGISTER: WHAT IT IS AND HOW TO USE IT FOR: Any person who uses the Federal Register and Code of Federal Regulations. WHO: Sponsored by the Office of the Federal Register. WHAT: Free public briefings (approximately 3 hours) to present: 1. The regulatory process, with a focus on the Federal Register system and the public's role in the development of regulations. 2. The relationship between the Federal Register and Code of Federal Regulations. 3. The important elements of typical Federal Register documents. 4. An introduction to the finding aids of the FR/CFR system. WHY: To provide the public with access to information necessary to research Federal agency regulations which directly affect them. There will be no discussion of specific agency regulations. __________________ WHEN: Tuesday, May 9, 2006 9:00 a.m.-Noon WHERE: Office of the Federal Register Conference Room, Suite 700 800 North Capitol Street, NW. Washington, DC 20002 RESERVATIONS: (202) 741-6008 ------------------------------------------------------------------------ CONTENTS Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Contents [[Page iii]] Agency for International Development PROPOSED RULES Semi-annual agenda, 23203-23207 NOTICES Agency information collection activities; proposals, submissions, and approvals, 20969-20970 Agricultural Marketing Service PROPOSED RULES Walnuts grown in California, 20902-20909 NOTICES Committees; establishment, renewal, termination, etc.: National Organic Standards Board, 20971-20972 Meetings: Fruit and Vegetable Industry Advisory Committee, 20972 Agricultural Research Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 20973 Agriculture Department See Agricultural Marketing Service See Agricultural Research Service See Federal Crop Insurance Corporation See Food Safety and Inspection Service See Forest Service PROPOSED RULES Semi-annual agenda, 22277-22374 NOTICES Agency information collection activities; proposals, submissions, and approvals, 20970-20971 Architectural and Transportation Barriers Compliance Board PROPOSED RULES Semi-annual agenda, 23209-23211 Army Department NOTICES Environmental statements; record of decision: Fort Indiantown Gap, PA; National Guard Training Center; brigade transformation, 21004 Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Census Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 20981-20982 Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 21027-21029 Civil Rights Commission PROPOSED RULES Semi-annual agenda, 23213 Commerce Department See Census Bureau See Economic Development Administration See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration PROPOSED RULES Semi-annual agenda, 22375-22466 NOTICES Agency information collection activities; proposals, submissions, and approvals, 20979-20981 Committee for Purchase From People Who Are Blind or Severely Disabled PROPOSED RULES Semi-annual agenda, 23215-23218 Commodity Futures Trading Commission PROPOSED RULES Semi-annual agenda, 23541-23545 NOTICES Foreign futures and options transactions: Foreign boards of trade receiving staff no-action relief to provide direct access to automated trading systems from U.S. locations; policy statement; correction, 21003 Comptroller of the Currency NOTICES Agency information collection activities; proposals, submissions, and approvals, 21092-21093 Consumer Product Safety Commission PROPOSED RULES Semi-annual agenda, 23547-23556 Corporation for National and Community Service PROPOSED RULES Semi-annual agenda, 23219-23222 Court Services and Offender Supervision Agency for the District of Columbia PROPOSED RULES Semi-annual agenda, 23223 Customs and Border Protection Bureau PROPOSED RULES Consolidated Omnibus Budget Reconciliation Act: Fees for certain services, 20922-20925 NOTICES Customhouse broker license cancellation, suspension, etc., 21030-21031 Defense Department See Army Department See Navy Department PROPOSED RULES Federal Acquisition Regulation (FAR): Semi-annual agenda, 23529-23540 [[Page iv]] Semi-annual agenda, 22467-22511 Economic Development Administration NOTICES Adjustment assistance; applications, determinations, etc.: Berliss Bearing Co., et al., 20983 Education Department PROPOSED RULES Semi-annual agenda, 22513-22518 NOTICES Agency information collection activities; proposals, submissions, and approvals, 21004-21005 Employment and Training Administration NOTICES Adjustment assistance; applications, determinations, etc.: Classic Print Products, Inc., 21041-21042 IBM Corp., 21042 Lending Textile Company Inc., 21042 Lexmark International, Inc., 21042 McCormick International USA, Inc., 21042 Newstech NY Inc., 21043 OBG Distribution Co., Ltd., 21043 Paris Accessories et al., 21043-21045 Tawas Resources, 21045 TRW Automotive, 21045-21046 Agency information collection activities; proposals, submissions, and approvals, 21046 Energy Department See Federal Energy Regulatory Commission PROPOSED RULES Semi-annual agenda, 22519-22536 Strategic Petroleum Reserve: acquisition of petroleum; procedures, 20909-20915 Environmental Protection Agency RULES Air programs; state authority delegations: Maine, 20895-20900 PROPOSED RULES Air programs: state authority delegations: Maine, 20931-20932 Semi-annual agenda, 23225-23388 NOTICES Air programs: New Stationary Sources Performance Standards, Hazardous Air Pollutants; and Stratospheric Ozone Protection Program-- Applicability Determination Index Database System; postings, 21014-21026 Meetings: Science Advisory Board, 21026-21027 Equal Employment Opportunity Commission PROPOSED RULES Semi-annual agenda, 23391-23394 Executive Office of the President See Management and Budget Office See Presidential Documents Farm Credit Administration PROPOSED RULES Semi-annual agenda, 23557-23563 Farm Credit System Insurance Corporation PROPOSED RULES Semi-annual agenda, 23565 Federal Aviation Administration RULES Class E airspace, 20871-20876 Correction, 20872-20873 PROPOSED RULES Airworthiness directives: Mitsubishi Heavy Industries, 20915-20919 Pilatus Aircraft Ltd., 20919-20922 NOTICES Agency information collection activities; proposals, submissions, and approvals, 21089-21090 Reports and guidance documents; availability, etc.: Certification and continued airworthiness of unbalanced surfaces with freeplay and other nonlinear features; interim guidelines, 21090 Federal Communications Commission PROPOSED RULES Semi-annual agenda, 23567-23628 NOTICES Agency information collection activities; proposals, submissions, and approvals, 21027 Federal Crop Insurance Corporation NOTICES Grants and cooperative agreements; availability, etc.: Research and Development Risk Management Research Partnerships, 20973-20978 Federal Deposit Insurance Corporation PROPOSED RULES Semi-annual agenda, 23629-23636 Federal Energy Regulatory Commission PROPOSED RULES Semi-annual agenda, 23637-23649 NOTICES Electric rate and corporate regulation combined filings, 21007-21009 Hydroelectric applications, 21009-21013 Meetings: Gulf South Pipeline Company, LP; site visit, 21013 Resource reports 11 and 13 guidance; technical conference, 21013- 21014 Applications, hearings, determinations, etc.: Detroit Edison Co., 21005 Northwest Pipeline Corporation, 21005-21006 Texas Eastern Transmission, LP, 21006 Federal Highway Administration PROPOSED RULES Right-of-way and environment: Worker visibility, 20925-20930 Federal Housing Enterprise Oversight Office PROPOSED RULES Semi-annual agenda, 23431-23433 Federal Housing Finance Board PROPOSED RULES Semi-annual agenda, 23651-23654 Federal Maritime Commission PROPOSED RULES Semi-annual agenda, 23655-23657 Federal Mediation and Conciliation Service PROPOSED RULES Semi-annual agenda, 23395-23397 [[Page v]] Federal Reserve System PROPOSED RULES Semi-annual agenda, 23659-23666 Federal Trade Commission PROPOSED RULES Semi-annual agenda, 23667-23679 Fish and Wildlife Service NOTICES Endangered and threatened species: Incidental take permits-- Escambia County, FL; Perdido Key beach mice, 21032-21033 Food and Drug Administration NOTICES Human drugs: Patent extension; regulatory review period determinations-- FASLODEX; correction, 21029-21030 Food Safety and Inspection Service RULES Meat and poultry inspection: Poultry product exportation to United States; eligible countries; addition-- China, 20867-20871 Forest Service NOTICES Committees; establishment, renewal, termination, etc.: Santa Rosa and San Jacinto Mountains National Monument Advisory Committee, 21039-21040 Meetings: National Tree-Marking Paint Committee, 20978-20979 Resource Advisory Committees-- Lassen County, 20979 Tuolumne County, 20979 General Services Administration RULES Federal Management Regulation: Personal property; replacement pursuant to exchange/sale authority; revision, 20900 PROPOSED RULES Federal Acquisition Regulation (FAR): Semi-annual agenda, 23529-23540 Semi-annual agenda, 23399-23410 Government Ethics Office PROPOSED RULES Semi-annual agenda, 23435-23442 Health and Human Services Department See Children and Families Administration See Food and Drug Administration See Indian Health Service See Substance Abuse and Mental Health Services Administration PROPOSED RULES Semi-annual agenda, 22537-22621 Homeland Security Department See Customs and Border Protection Bureau PROPOSED RULES Semi-annual agenda, 22623-22731 Housing and Urban Development Department See Federal Housing Enterprise Oversight Office PROPOSED RULES Semi-annual agenda, 22733-22761 NOTICES Agency information collection activities; proposals, submissions, and approvals, 21031-21032 Indian Affairs Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 21033-21034 Environmental statements; notice of intent: Las Vegas Paiute Indian Tribe Reservation, Clark County, NV; residential and commercial development; construction, operation, and maintenance, 21034-21036 Grants and cooperative agreements; availability, etc.: Federally-recognized Indian tribes for projects implementing traffic safety on Indian reservations, 21036-21038 Indian Health Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 21033-21034 Industry and Security Bureau RULES Export administration regulations: Commerce Control List-- Calculating computer performance; new formula implementation; adjusted peak performance in weighted TeraFLOPS; Bulgaria; XP and MT controls, 20876-20894 NOTICES Meetings: Transportation and Related Equipment Technical Advisory Committee, 20983-20984 Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See National Indian Gaming Commission PROPOSED RULES Semi-annual agenda, 22763-22846 International Trade Administration NOTICES Export trade certificates of review, 20984 International Trade Commission NOTICES Import investigations: Digital processors and digital processing systems, components, and products containing same, 21040-21041 Tin- and chromium-coated steel sheet from-- Japan, 21041 Meetings; Sunshine Act, 21041 Justice Department PROPOSED RULES Semi-annual agenda, 22847-22891 Labor Department See Employment and Training Administration PROPOSED RULES Semi-annual agenda, 22895-22941 [[Page vi]] Land Management Bureau NOTICES Alaska Native claims selection: Doyon, Ltd., 21038 MTNT, Ltd., 21038 Coal leases, exploration licenses, etc.: Colorado, 21038-21039 Committees; establishment, renewal, termination, etc.: Santa Rosa and San Jacinto Mountains National Monument Advisory Committee, 21039-21040 Meetings: Resource Advisory Committees-- Medford District, 21040 Legal Services Corporation NOTICES Meetings; Sunshine Act, 21046-21048 Management and Budget Office PROPOSED RULES Semi-annual agenda, 23443-23445 Maritime Administration NOTICES Environmental statements; availability, etc.: Port of Anchorage Intermodal Expansion, North End Runway Material Extraction and Transport Project; AK, 21090-21091 National Aeronautics and Space Administration PROPOSED RULES Federal Acquisition Regulation (FAR): Semi-annual agenda, 23529-23540 Semi-annual agenda, 23411-23416 National Archives and Records Administration PROPOSED RULES Semi-annual agenda, 23417-23422 National Credit Union Administration PROPOSED RULES Semi-annual agenda, 23681-23690 National Foundation on the Arts and the Humanities PROPOSED RULES Semi-annual agenda: Institute of Museum and Library Services, 23423-23425 National Endowment for the Arts, 23427 National Endowment for the Humanities, 23429 National Highway Traffic Safety Administration PROPOSED RULES Motor vehicle safety standards: Interior impact occupant protection, 20932-20940 National Indian Gaming Commission PROPOSED RULES Semi-annual agenda, 23691-23695 National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Northeastern United States fisheries-- Atlantic mackerel, squid, and butterfish, 20900-20901 PROPOSED RULES Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone-- Bering Sea and Aleutian Islands king and tanner crab, 20966- 20968 Marine mammals: Commercial fishing authorizations-- Fisheries categorized according to frequency of incidental takes; 2006 list, 20941-20965 Meetings: Sea Turtle Conservation, 20941 NOTICES Fishery conservation and management: Atlantic coastal fisheries cooperative management-- Atlantic striped bass, 20984-20986 Marine mammals: Incidental taking; authorization letters, etc.-- U.S. Navy; Hawaiian Islands Operating Area; Rim of the Pacific antisubmarine warfare training exercises; small amount of several species, 20986-21003 Meetings: Pacific Fishery Management Council, 21003 Navy Department NOTICES Meetings: Naval Research Advisory Committee, 21004 Nuclear Regulatory Commission PROPOSED RULES Semi-annual agenda, 23697-23712 Office of Federal Housing Enterprise Oversight See Federal Housing Enterprise Oversight Office Office of Management and Budget See Management and Budget Office Peace Corps PROPOSED RULES Semi-annual agenda, 23471-23473 Pension Benefit Guaranty Corporation PROPOSED RULES Semi-annual agenda, 23475-23479 Personnel Management Office PROPOSED RULES Semi-annual agenda, 23447-23469 NOTICES Agency information collection activities; proposals, submissions, and approvals, 21048-21049 Postal Rate Commission PROPOSED RULES Practice and procedure: Express Mail Second Day Service; classification change, 20930-20931 Presidential Documents PROCLAMATIONS Special observances: National Physical Fitness and Sports Month (Proc. 8003), 20863- 20864 National Volunteer Week (Proc. 8004), 20865-20866 Presidio Trust PROPOSED RULES Semi-annual agenda, 23481-23483 Railroad Retirement Board PROPOSED RULES Semi-annual agenda, 23485-23488 [[Page vii]] Regulatory Information Service Center PROPOSED RULES Introduction to Unified Agenda of Federal Regulatory and Deregulatory Actions, 22271-22275 Securities and Exchange Commission PROPOSED RULES Semi-annual agenda, 23713-23732 NOTICES Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 21053-21058 Chicago Board Options Exchange, Inc., 21058-21060 Chicago Stock Exchange, Inc., 21060 Fixed Income Clearing Corp. and National Securities Clearing Corp., 21060-21062 National Association of Securities Dealers, Inc., 21062-21063 National Stock Exchange, 21063-21064 New York Stock Exchange, Inc., 21064-21087 Philadelphia Stock Exchange, Inc., 21087-21088 Applications, hearings, determinations, etc.: Bridgeway Funds, Inc., et al., 21049-21053 Selective Service System PROPOSED RULES Semi-annual agenda, 23489 Small Business Administration PROPOSED RULES Semi-annual agenda, 23491-23505 Social Security Administration PROPOSED RULES Semi-annual agenda, 23507-23528 NOTICES Agency information collection activities; proposals, submissions, and approvals, 21088-21089 State Department PROPOSED RULES Semi-annual agenda, 22943-22951 NOTICES Foreign Operations, Export Financing, and Related Programs Appropriations Act: International Red Cross and Red Crescent Movement; Israeli Magen David Adom Society participation; determination, 21089 Meetings: International Law Advisory Committee, 21089 Substance Abuse and Mental Health Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 21030 Surface Transportation Board PROPOSED RULES Semi-annual agenda, 23733-23735 Transportation Department See Federal Aviation Administration See Federal Highway Administration See Maritime Administration See National Highway Traffic Safety Administration See Surface Transportation Board PROPOSED RULES Semi-annual agenda, 22953-23048 Treasury Department See Comptroller of the Currency PROPOSED RULES Consolidated Omnibus Budget Reconciliation Act: Fees for certain services, 20922-20925 Semi-annual agenda, 23049-23177 NOTICES Agency information collection activities; proposals, submissions, and approvals, 21091-21092 Veterans Affairs Department PROPOSED RULES Semi-annual agenda, 23179-23201 ----------------------------------------------------------------------- Separate Parts In This Issue Parts II-LXI The Unified Agenda of the Federal Regulatory and Deregulatory Actions, 22267-23854 ----------------------------------------------------------------------- Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 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. Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Contents Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Contents Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Contents [[Page viii]] 3 CFR Proclamations: 8003.................................................20863 8004.................................................20865 7 CFR Proposed Rules: 984..................................................20902 9 CFR 381..................................................20867 10 CFR Proposed Rules: 626..................................................20909 14 CFR 71 (6 documents)........20871, 20872, 20873, 20874, 20875, 20876 Proposed Rules: 39 (2 documents)..............................20915, 20919 15 CFR 730..................................................20876 732..................................................20876 734..................................................20876 738..................................................20876 740..................................................20876 742..................................................20876 743..................................................20876 746..................................................20876 748..................................................20876 750..................................................20876 752..................................................20876 762..................................................20876 770..................................................20876 772..................................................20876 774..................................................20876 19 CFR Proposed Rules: 24...................................................20922 111..................................................20922 23 CFR Proposed Rules: 634..................................................20925 39 CFR Proposed Rules: 3001.................................................20930 40 CFR 63...................................................20895 Proposed Rules: 63...................................................20931 41 CFR 102-39...............................................20900 49 CFR Proposed Rules: 571..................................................20932 50 CFR 648..................................................20900 Proposed Rules: 223..................................................20941 229..................................................20941 680..................................................20966

usgpo

2024-10-08T14:08:33.018948

FR

FR-2006-04-24/06-3914

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Presidential Documents] [Pages 20863-20864] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3914] Presidential Documents Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Presidential Documents ___________________________________________________________________ Title 3-- The President [[Page 20863]] Proclamation 8003 of April 19, 2006 National Physical Fitness and Sports Month, 2006 By the President of the United States of America A Proclamation For 50 years, the President's Council on Physical Fitness and Sports has helped individuals, schools, communities, businesses, and organizations promote healthy lifestyles. During this year's National Physical Fitness and Sports Month, we celebrate the Council's 50th anniversary and underscore our Nation's strong commitment to health, physical activity, and fitness. President Dwight D. Eisenhower founded the President's Council on Youth Fitness in 1956 to encourage America's youth to make fitness a priority. He wrote that year, ``Our young people must be physically as well as mentally and spiritually prepared for American citizenship.'' The Council later became the President's Council on Physical Fitness and Sports, including people of all ages and abilities and promoting fitness through sports and games. Today, the Council continues to play an important role in promoting fitness and healthy living in America. My HealthierUS Initiative provides simple steps to help citizens live longer and better lives, and millions of young people and adults have participated in the President's Challenge awards program. The Council's website, fitness.gov, has information about these programs and other ways Americans can improve their health through physical activity. By exercising regularly and maintaining healthy eating habits, individuals can feel better and reduce their risk of chronic health conditions like obesity, diabetes, heart disease, and cancer. An active lifestyle also creates opportunities for friends and family to spend time together and enjoy various forms of exercise, such as biking, hiking, and team sports. The medical benefits, increased self-confidence, and stress reduction that can come from athletic activity help contribute to a healthier, more productive Nation. I urge children, teens, and all Americans to make time every day for exercise and to encourage family, friends, and neighbors to live healthier lives by participating in physical fitness activities. As President Kennedy said at the 1961 Youth Fitness Conference, ``We do not want in the United States a nation of spectators. We want a nation of participants in the vigorous life.'' NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim May 2006 as National Physical Fitness and Sports Month. I call upon the people of the United States to make daily exercise a priority. I encourage individuals, community organizations, and schools to celebrate with physical and athletic activities and to work toward the great national goal of an active, fit America. [[Page 20864]] IN WITNESS WHEREOF, I have hereunto set my hand this nineteenth day of April, in the year of our Lord two thousand six, and of the Independence of the United States of America the two hundred and thirtieth. (Presidential Sig.)B [FR Doc. 06-3914 Filed 4-21-06; 8:49 am] Billing code 3195-01-P

usgpo

2024-10-08T14:08:33.036054

FR

FR-2006-04-24/06-3915

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Presidential Documents] [Pages 20865-20866] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3915] Presidential Documents Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Presidential Documents ___________________________________________________________________ [[Page 20865]] Proclamation 8004 of April 19, 2006 National Volunteer Week, 2006 By the President of the United States of America A Proclamation Throughout our country, volunteers make America stronger and better by reaching out to help their neighbors in need. During National Volunteer Week, we recognize the millions of individuals who dedicate their time, talents, and energy to making a difference in the lives of others and reaffirm our commitment to supporting these soldiers in the armies of compassion. In the 1830s, a Frenchman named Alexis de Tocqueville visited our Nation and saw that the secret to America's success was our talent for bringing people together for the common good and our willingness to serve a cause greater than self. Today, the great strength of America is still found in the hearts and souls of our people. By making a commitment to service, integrity, and good citizenship, our Nation's volunteers show their gratitude for the blessings of freedom and help build a more hopeful future for our children and grandchildren. Since we created USA Freedom Corps in 2002, my Administration has matched millions of willing volunteers with opportunities to serve in their communities. These kind-hearted individuals help people who hurt, mentor children who need love, feed those who are hungry, and shelter those who need homes. In the aftermath of the devastating hurricanes of 2005, people throughout our great Nation opened their hearts to help the Gulf Coast recover and rebuild. We will continue to foster the efforts of the millions who care deeply about the future of our country and the plight of their fellow citizens. Americans can find more information about volunteer service opportunities in their own hometowns by visiting the USA Freedom Corps website at volunteer.gov. Our Nation is a force for freedom and prosperity, and our greatness is measured by our character and how we treat one another. During National Volunteer Week, and throughout the year, we appreciate the millions of volunteers across America and strive to be a more compassionate and decent society. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim April 23 through April 29, 2006, as National Volunteer Week. I call upon all Americans to recognize and celebrate the important work that volunteers do every day throughout our country. I also encourage citizens to explore ways to help their neighbors in need and serve a cause greater than themselves. [[Page 20866]] IN WITNESS WHEREOF, I have hereunto set my hand this nineteenth day of April, in the year of our Lord two thousand six, and of the Independence of the United States of America the two hundred and thirtieth. (Presidential Sig.)B [FR Doc. 06-3915 Filed 4-21-06; 8:49 am] Billing code 3195-01-P

usgpo

2024-10-08T14:08:33.065156

FR

FR-2006-04-24/06-3889

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Pages 20867-20871] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3889] ======================================================================== Rules and Regulations Federal Register ________________________________________________________________________ This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. ======================================================================== Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Rules and Regulations [[Page 20867]] DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service 9 CFR Part 381 [Docket No. 05-012F; FDMS No. FSIS-2005-0034] RIN 0583-AD20 Addition of the People's Republic of China to the List of Countries Eligible To Export Processed Poultry Products to the United States AGENCY: Food Safety and Inspection Service, USDA. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Food Safety and Inspection Service (FSIS) is adding the People's Republic of China to the list of countries eligible to export processed poultry products to the United States. Reviews of the People's Republic of China's laws, regulations, and other materials show that its poultry processing system includes requirements equivalent to the provisions of the Poultry Products Inspection Act (PPIA) and its implementing regulations. Processed poultry products from the People's Republic of China may be imported into the United States only if they are processed in certified establishments in the People's Republic of China from poultry slaughtered in certified slaughter establishments in other countries eligible to export poultry to the United States. China is not currently eligible to export poultry products to the United States that include birds that were slaughtered in China's domestic establishments. All poultry products exported from China must comply with all other U.S. requirements, including the restrictions under the Animal and Plant Health Inspection Service (APHIS). All poultry products exported from the People's Republic of China to the United States will be subject to reinspection at the U.S. ports of entry by FSIS inspectors as required by law. DATES: Effective Date: May 24, 2006. FOR FURTHER INFORMATION CONTACT: Ms. Sally White, Director, International Equivalence Staff, Office of International Affairs; (202) 720-6400. SUPPLEMENTARY INFORMATION: Background On November 23, 2005, FSIS proposed to amend the Federal poultry products inspection regulations to add the People's Republic of China to the list of countries eligible to export processed poultry products to the United States (70 FR 70746). As discussed in that proposed rulemaking, in response to a request from the People's Republic of China for approval to export processed poultry products to the United States, FSIS conducted a review of the People's Republic of China's poultry processing inspection system to determine if it was equivalent to the U.S. poultry inspection system. Although the People's Republic of China requested approval to export processed poultry products, it will initially only export fully cooked, shelf-stable product (see 70 FR at 70747). FSIS evaluated the People's Republic of China's poultry inspection laws and regulations and compared them with U.S. requirements. FSIS concluded that the requirements contained in the People's Republic of China's poultry inspection laws and regulations are equivalent to those mandated by the PPIA and implementing regulations. FSIS also conducted an on-site review of the People's Republic of China's poultry processing inspection system in operation. The FSIS review team concluded that the People's Republic of China's implementation of poultry processing standards and procedures is equivalent to that of the United States. The full report on the audit of the People's Republic of China poultry inspection system can be found on the FSIS Web site at http://www.fsis.usda.gov/regulations/foreign_audit_reports/index.asp. Listing the People's Republic of China as eligible to export poultry products to the United States would expand international markets and enhance the free flow of trade with the People's Republic of China. This rule is consistent with U.S. obligations under the WTO and will support U.S. trade initiatives and USDA's policy with respect to agricultural trade with the People's Republic of China. Under the World Trade Organization Agreement on the Application of Sanitary and Phyto-Sanitary Measures, FSIS makes equivalence determinations of the inspection systems of foreign countries that have requested to import meat, poultry, or egg products into the United States. As a country eligible to export processed poultry products to the United States, the government of the People's Republic of China will certify to FSIS those establishments wishing to export such products to the U.S. and operating according to U.S. requirements. FSIS will retain the right to verify that establishments certified by the government of the People's Republic of China government are meeting the U.S. requirements. This will be done through on-site reviews of the establishments while they are in operation. Products from a country eligible to export poultry products must also comply with all other U.S. requirements, including those of the U.S. Customs and Border Protection and the restrictions under Title 9, part 94 of the (APHIS) regulations that relate to the importation of poultry and poultry products from foreign countries into the United States. APHIS has classified China as a region where the highly pathogenic avian influenza (HPAI) subtype H5N1 is considered to exist (9 CFR 94.6(d)). Those products that APHIS has restricted from entering the United States because of animal disease conditions in the country of origin will be refused entry before reaching an FSIS import inspection facility. FSIS and APHIS work closely to ensure that poultry and poultry products imported into the United States comply with the regulatory requirements of both agencies. APHIS and FSIS communicate regularly to ensure that the products APHIS has restricted from entering the United States because of animal disease concerns are not imported into the United States. Response to Comments FSIS received 34 comments in response to the proposed rule. Commenters included individual U.S. [[Page 20868]] citizens, the U.S. poultry industry, the South Dakota Department of Agriculture, and the South Dakota Animal Industry Board. FSIS also received a comment from the China Chamber of Commerce for Import/Export of Food Stuffs, Native Produce and Animal By-Products, and comments from individuals from the People's Republic of China and from the Chinese food industry. In addition, the Department of Agriculture received 5 letters from members of Congress opposed to the rule. The Department also received 6 letters from members of Congress that forwarded letters from their constituents concerning the proposal. The China Chamber of Commerce for Import/Export of Food Stuffs, Native Produce and Animal By-Products and other comments from individuals and food industry representatives from the People's Republic of China supported the proposed rule. All other commenters opposed adding the People's Republic of China to the list of countries eligible to export processed poultry products to the United States. Comment: Most commenters opposed to the rule stated that China should not be added to the list of countries eligible to export processed poultry and poultry products to the United States because of outbreaks of the infectious H5N1 strain of avian influenza in the country's poultry. Response: USDA has determined that this rule will not adversely affect human health. FSIS is relying on a systematic equivalence determination of the poultry processing system in China to ensure the processing procedures in place in China are adequate to destroy the avian influenza virus in the preparation of shelf-stable, fully cooked poultry products. Additionally, USDA has determined this rule will not adversely affect animal health. APHIS is the USDA Agency primarily responsible for preventing the introduction and dissemination of foreign animal diseases into the United States. Under Title 9, part 94 of its regulations (9 CFR 94), APHIS sets restrictions on the importation of certain fresh, frozen, and chilled poultry, poultry products, and edible products from countries in which certain animal diseases exist. APHIS has classified China as a region where the highly pathogenic avian influenza (HPAI) subtype H5N1 is considered to exist (9 CFR 94.6(d)). In addition, the United States Department of Health and Human Service, Centers for Disease Control and Prevention, restricts the entry of birds and unprocessed bird products from China because of concerns over the human health risks these items may pose (42 CFR 71.32(b), emergency order dated February 4, 2004). Even if a foreign country is listed in FSIS regulations as eligible to export poultry products, those poultry products must also comply with all other applicable U.S. requirements. Before a shipment of processed poultry or poultry products may be presented for reinspection at the port of entry by FSIS, it must have first met the requirements for both U.S. Customs and Border Protection and APHIS. Therefore, because APHIS has classified China as a region where the highly pathogenic avian influenza (HPAI) subtype H5N1 is considered to exist (9 CFR 94.6(d)), APHIS has restricted the importation of fresh, frozen, and chilled poultry, and poultry products to protect animal health in the United States. China's slaughter establishments have not at this time been determined equivalent for the slaughtering of poultry intended to be processed in China as shelf-stable, fully cooked poultry. Comment: Commenters opposed to the rule questioned how FSIS will ensure that poultry products processed in China for export to the United States will contain no poultry that was raised or slaughtered in China. Similarly, several commenters questioned whether FSIS can be certain that poultry plants in China are consistently cooking their products sufficiently to kill the avian influenza virus, that no improperly cooked poultry products will be shipped to the U.S., and that adequate safety measures are in place to guarantee that poultry sent to China for processing would be safe for consumption in the U.S. A commenter stated that annual inspections will do very little to make certain that Chinese plants meet U.S. requirements for exporting their product to the U.S. One commenter was concerned that shipping containers could contain microbes that should not be transferred into the U.S. Response: Under FSIS' regulations, maintenance of eligibility of a country for importation of poultry products into the United States depends on the results of FSIS' periodic reviews (audits) of the foreign poultry inspection system in operation, and the timely submission of such documents and other information related to the conduct of the foreign inspection system as FSIS may find pertinent to and necessary for the determinations concerning a foreign country's eligibility (Sec. 381.196(a)(2)(iii)). These are standard procedures that FSIS carries out for all countries for continuing evaluation of equivalence. These are similar to the procedures used by other countries in evaluating foreign systems for equivalency and continuing eligibility. The process inherently has the ability to adjust verification scope and frequency based on findings. Equivalency requirements for the sanitary handling of product must be maintained to ensure that product is protected during processing, handling, storage, loading and unloading, at and during transportation from official establishments. Under the regulations, only those establishments that an official of the People's Republic of China's poultry inspection system certifies as fully complying with requirements equivalent to the provisions of the PPIA and the regulations issued thereunder will be eligible to have their products imported to the United States. The People's Republic of China will be required to renew these certifications annually (Sec. 381.196(a)(3)). China has agreed that it will require, and have procedures in place to ensure, that there is separation by time or space of product destined for export to the United States separate from product intended for distribution domestically. Appropriate records will be available for audit by U.S. officials. During FSIS' audits of certified establishments in the People's Republic of China, FSIS will review records, including supplier sheets and import and export records, to determine the origin of incoming poultry product received for further processing and the final destination of the product. Through these audits, FSIS will verify that any poultry product received for further processing in a certified establishment and ultimately exported to the U.S. was derived from poultry slaughtered in certified slaughter establishments in other countries eligible to export poultry to the United States. The regulations also require that a foreign inspection system, such as that in the People's Republic of China, maintains a program to assure that the requirements equivalent to those in the U.S. are met. To assure that these requirements are being met, the regulations require that a representative of the foreign inspection system periodically visit each establishment certified as complying with requirements equivalent to those of the PPIA and implementing regulations. The regulations also require that this representative prepare written reports documenting findings concerning requirements equivalent to those of the poultry inspection system in the United States (Sec. 381.196(a)(2)(iv)). FSIS will evaluate these reports during audits. [[Page 20869]] Furthermore, each consignment containing any slaughtered poultry or other poultry product consigned to the United States from a foreign country, such as the People's Republic of China, must be accompanied with a foreign inspection certificate that certifies that the products are sound, healthful, wholesome, clean and otherwise fit for human food; are not adulterated and have not been treated with and do not contain any dye, chemical, preservative, or ingredient not permitted by FSIS' regulations; that the poultry products have been handled only in a sanitary manner in the foreign country; and are otherwise in compliance with requirements at least equal to those in the PPIA and FSIS' regulations (Sec. 381.197). Thus, a representative of the Chinese government must certify that the product is not adulterated and has undergone adequate cooking and processing. In addition to relying on its initial determination of a country's eligibility and performing ongoing reviews to ensure that products shipped to the U.S. are safe, wholesome and properly labeled and packaged, all poultry products exported to the United States from the People's Republic of China will be subject to reinspection at the ports of entry for transportation damage, labeling, proper certification, general condition, and accurate count. Other types of inspection will also be conducted, including examining the product for defects and performing laboratory analyses that will detect chemical residues on the product or determine whether the product is microbiologically contaminated. Products that pass reinspection will be stamped with the official mark of inspection and allowed to enter U.S. commerce. If they do not meet U.S. requirements, they will be ``Refused Entry'' and must be re- exported, destroyed or converted to animal food. Comment: One commenter questioned whether FSIS will visit each Chinese plant annually. This same commenter stated that the USDA's Office of Inspector General (OIG) found that problems identified by FSIS in Canada's meat and poultry inspection system went uncorrected for two years or more. Another commenter stated that an initial FSIS equivalence audit of the People's Republic of China revealed numerous serious deficiencies involving sanitation, cross contamination, and complete failure to understand FSIS' requirements. Response: The final report regarding FSIS' audit of the People's Republic of China is found at http://www.fsis.usda.gov/regulations/foreign_audit_reports/index.asp. This report highlights that the predominance of deficiencies were in slaughter facilities. However, this rule addresses the segment of the industry that is responsible for further processing of poultry. The few deficiencies that were identified in further processing were corrected by China and detailed corrective action plans were submitted by the Chinese government to FSIS. Regarding the violations that were found in the slaughter plants, the Chinese government continues to work with FSIS. Therefore, no equivalency determination has been made at this time for the slaughter segment of the system. The final report does indicate that the People's Republic of China's implementation of poultry processing standards and procedures for fully cooked, shelf stable processed poultry products are equivalent to those of the United States. The OIG findings concerning Canada's meat and poultry inspection system are not related to FSIS' audits of the People's Republic of China. During audits of the People's Republic of China's inspection system, FSIS will conduct at least annual random audits of the establishments certified by the People's Republic of China as complying with requirements equivalent to those in the PPIA and implementing regulations. While every establishment may not be visited annually, FSIS will conduct audits of one or more establishments annually or when deemed necessary. FSIS determines which establishments to visit based on performance history from re-inspection at import, audit history, information from other Federal agencies, and number of certified establishments. Comment: Several commenters expressed concerns regarding reports of illegal smuggling of poultry products from China and other areas affected by avian flu. Response: This rule is not expected to have any impact on illegal entry of products. The U.S. Customs and Border Protection, rather than FSIS, addresses smuggling. U.S. Customs and Border Protection works closely with FSIS on identifying illegal entry products and other ineligible products. Additionally, U.S. Customs and Border Protection serves as a first line of defense for all products entering the country. Products are first presented to U.S. Customs and Border Protection and if products are found to contain amenable product, FSIS is notified as appropriate. Comment: Numerous commenters objected to the rule for economic reasons. Commenters stated that the public perception of poultry imports from China and other Asian countries has been extremely negative and that the rule could undermine U.S. consumers' confidence in poultry products. Several commenters stated that the proposal could negatively affect the U.S. poultry industry, particularly the smaller sectors of the U.S. poultry industry, such as duck, goose, and squab. According to these commenters, low grade Chinese products are produced at a fraction of the price of U.S. products because of lower wages and benefits. Some commenters stated that FSIS underestimated the volume of product that would be imported into the U.S. from the People's Republic of China. One commenter that supported the rule stated that the benefits outlined in the proposal have been severely understated. This commenter opined that the rule would bring about greater competition and efficiency within the industry and lower prices for consumers. Response: Import quotas cannot be established to limit the potential economic impacts speculated upon by certain of the commenters. Economic and market realities, however, make it very unlikely that substantially larger amounts of processed poultry product than those estimated in the preliminary analysis would be available for the People's Republic of China to export to the U.S. The People's Republic of China's internal market is experiencing a major growth in demand for poultry that is unlikely to abate for some time. The main prospective growth area for the People's Republic of China's agricultural exports is East Asia rather than North America. Energy costs, predicted to rise steadily in the foreseeable future, would also limit the economic capability of the People's Republic of China to export significant amounts of processed poultry product to the U.S. However, in response to comments that stated that the preliminary analysis underestimated the volume of product that would be imported from the People's Republic of China, FSIS estimated a range for the volume of fully cooked, shelf-stable poultry product that would be imported into the U.S. from the People's Republic of China. In the final analysis, FSIS estimates that the volume of imported poultry product from China would range from 2,500,000 pounds (1,134 metric tons) to 6,250,000 pounds (2,835 metric tons) per year, for the next four years. Then, the growth would likely level off. The annual volume of imported poultry product from China would range from approximately 0.007 [[Page 20870]] percent to 0.018 percent of the total poultry products production in the U.S. Although U.S. firms that produce products such as duck and geese products may compete with the People's Republic of China's imports and could conceivably face short-run difficulty, such firms will likely adjust their product mix and be able to compete effectively. FSIS does not believe that this rule will adversely affect the U.S. poultry industry, because the volume of trade that results from this rule will likely be small and have little effect on supply and prices or on U.S. consumers' confidence in poultry products. In addition, consumers will not be required to purchase poultry products produced and processed in the People's Republic of China. FSIS does not believe that it underestimated the benefits in the preliminary analysis. The preliminary and final analyses recognize that the any significant effects of the rule will come through efficiency gains. Comment: One commenter stated that the proposed rule was not disclosed to the public. Another commenter stated that the proposal was not given the public exposure that it warranted. Response: The proposed rule was published in the Federal Register. In addition, FSIS made the proposed rule available on its Web site. FSIS also made copies of the proposal available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, and regulations that could affect or would be of interest to FSIS'' constituents and stakeholders. Comment: One commenter was opposed to allowing any foreign country to process food products for the U.S., several commenters recommended requiring country of origin labeling, and one comment stated that Chinese companies that do business with the U.S. should practice humane handling of poultry. Response: These comments were beyond the scope of this regulation. They are not being addressed in the regulation, but the Agency appreciates the comments. Executive Order 12866 and Regulatory Flexibility Act This rule was reviewed by the Office of Management and Budget under Executive Order 12866 and was determined to be significant. There are 10 to 25 establishments (based on recent information from the U.S. Embassy in Beijing, China) in the People's Republic of China that may be exporting product to the U.S. when this rule is effective. The establishments will export shelf-stable, fully cooked poultry products. U.S. imports from these establishments are expected to total 2,500,000 pounds (1,134 metric tons) to 6,250,000 pounds (2,835 metric tons) per year, for the next four years. Then, the growth would likely level off. In 2005, the U.S. produced about 35,365,000,000 pounds (16,041,459 metric tons) of poultry products. Thus, the annual volume of imported poultry product from China would range from 0.007 percent (1,134.0 metric tons/16,041,459 metric tons) to 0.018 percent (2,835 metric tons/16,041,459 metric tons) of the poultry products production in the U.S. U.S. firms export large amounts of poultry and poultry products to the People's Republic of China. Table A reflects U.S. exports of poultry and poultry products to the People's Republic of China for the years 1998-2003. This final rule will facilitate trade between the U.S. and the People's Republic of China in poultry products in a manner consistent with U.S. obligations under the WTO, which will result in benefits. U.S. consumers will not be required to purchase poultry products produced and processed in the People's Republic of China, although they may choose to do so. Expected benefits from this type of rule will theoretically accrue to consumers in the form of lower prices. The volume of trade stimulated by this rule, however, will likely be so small as to have little effect on supply and prices. Consumers, apart from any change in prices, will also benefit from increased choices in the marketplace. The costs of this rule will theoretically accrue to producers in the form of greater competition from the People's Republic of China. Again, it must be noted that the volume of trade stimulated by this rule will likely be small and have little effect on supply and prices. Nonetheless, it is possible that U.S. firms that produce products, such as duck and geese products, that will compete with the People's Republic of China imports could face increased competition. However, in the long run, such firms will likely adjust their product mix and be able to compete effectively. Any significant benefits of this rule will likely come through efficiency gains and potentially greater choice of products for consumers. FSIS reviewed the costs and benefits of the rule and determined that benefits will outweigh costs. The rule will not affect the safety of poultry products consumed in the U.S. Products will only be imported from the People's Republic of China if the People's Republic of China establishments can produce the products more efficiently than their U.S. counterparts. Then, U.S. firms will have the incentive to specialize in the production of products in which they are relatively more efficient. In the long run, this improved efficiency will make U.S. producers more competitive both domestically and internationally. Table A.--U.S. Exports of Poultry Products to the People's Republic of China, 1998-2003 [Data shown in metric tons] ---------------------------------------------------------------------------------------------------------------- Product 1998 1999 2000 2001 2002 2003 ---------------------------------------------------------------------------------------------------------------- Poultry Meats..................... 41493.0 61948.9 64787.2 62413.8 86871.4 136494.9 Chickens, Fresh/Frozen............ 39007.7 58762.5 61181.2 48786.6 70670.3 129617.8 Poultry, Misc..................... 18391.9 15603.1 16204.1 19110.2 13962.8 47911.3 Poultry Meats, Prep............... 46.6 1518.1 1860.9 8562.6 8831.4 3796.6 Turkeys, Fresh/Frozen............. 2437.5 1624.7 1624.0 4764.1 6986.2 2236.6 Other Poultry Fresh/Frozen........ 1.2 43.6 121.2 300.4 383.5 843.9 ---------------------------------------------------------------------------------------------------------------- The data in Table A have been compiled from tariff and trade data from the U.S. Department of Commerce and the U.S. International Trade Commission. Effect on Small Entities The Administrator, FSIS, has determined that this final rule will not have a significant impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601). This rule would add the People's Republic of China to the list of countries eligible to export [[Page 20871]] poultry products into the United States. Once the People's Republic of China begins to export poultry products into the United States, the volume of shelf-stable, fully cooked poultry products available in the U.S. market will likely increase by approximately 2,500,000 pounds (1,134.0 metric tons) to 6,250,000 pounds (2,835 metric tons) per year. However, this small volume of trade is unlikely to impact the supply and prices of these products. Therefore, this rule should have no significant impact on small entities that produce these types of products domestically. Paperwork Requirements No new paperwork requirements are associated with this final rule. Foreign countries wanting to export poultry products to the United States are required to provide information to FSIS certifying that its inspection system provides standards equivalent to those of the United States and that the legal authority for the system and its implementing regulations are equivalent to those of the United States before they may start exporting such product to the United States. FSIS collects this information one time only. FSIS gave the People's Republic of China questionnaires asking for detailed information about the country's inspection practices and procedures to assist the country in organizing its materials. This information collection was approved under OMB number 0583-0094. The rule contains no other paperwork requirements. Executive Order 12988 This rule has been reviewed under Executive Order 12988, Civil Justice Reform. When this final rule is adopted: (1) All state and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule. Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that this final rule comes to the attention of the public--including minorities, women, and persons with disabilities--FSIS will announce it on-line through the FSIS Web page located at http://www.fsis.usda.gov/regulations_&_policies/2006_Interim_&_Final_Rules_Index/index.asp. The Regulations.gov Web site is the central online rulemaking portal of the United States government. It is being offered as a public service to increase participation in the Federal Government's regulatory activities. FSIS participates in Regulations.gov and will accept comments on documents published on the site. The site allows visitors to search by keyword or Department or Agency for rulemakings that allow for public comment. Each entry provides a quick link to a comment form so that visitors can type in their comments and submit them to FSIS. The Web site is located at http://www.regulations.gov. FSIS also will make copies of this Federal Register publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and other types of information that could affect or would be of interest to our constituents and stakeholders. The update is communicated via Listserv, a free e-mail subscription service consisting of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals who have requested to be included. The update also is available on the FSIS Web page. Through Listserv and the Web page, FSIS is able to provide information to a broader and more diverse audience. In addition, FSIS offers an e-mail subscription service that provides automatic and customized access to selected food safety news and information. This service is available at http://www.fsis.usda.gov/news_and_events/email_subscription/. Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves and have the option to password protect their accounts. List of Subjects 9 CFR Part 381 Imports, Intergovernmental relations, Poultry and poultry products. 0 For the reasons set out in the preamble, FSIS is amending 9 CFR part 381 as follows: PART 381--IMPORTED POULTRY PRODUCTS 0 1. The authority citation for part 381 continues to read as follows: Authority: 7 U.S.C. 138f, 450; 21 U.S.C. 451-470; 7 CFR 2.18, 2.53. Sec. 381.196 [Amended] 0 2. Section 381.196 is amended by adding ``People's Republic of China\2\'' in alphabetical order to the list of countries in paragraph (b). Done at Washington, DC, on: April 20, 2006. Barbara J. Masters, Administrator. [FR Doc. 06-3889 Filed 4-20-06; 10:16 am] BILLING CODE 3410-DM-P

usgpo

2024-10-08T14:08:33.086708

FR

FR-2006-04-24/06-3860

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Pages 20871-20872] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3860] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-23713; Airspace Docket No. 06-AAL-06] Revision of Class E Airspace; Togiak Village, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final Rule. ----------------------------------------------------------------------- SUMMARY: This action revises Class E airspace at Togiak Village, AK to provide adequate controlled airspace to contain aircraft executing two new and two amended Standard Instrument Approach Procedures (SIAPs). This rule results in revised Class E airspace established upward from 700 feet (ft.) above the surface at Togiak Village, AK. EFFECTIVE DATE: 0901 UTC, August 3, 2006. FOR FURTHER INFORMATION CONTACT: Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail: [email protected]. Internet address: http://www.alaska.faa.gov/at. SUPPLEMENTARY INFORMATION: History On Wednesday, February 15, 2006, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise Class E airspace upward from 700 ft. above the surface at Togiak, AK (71 FR 7888). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new and two amended SIAPs for the Togiak Airport. For clarification, the airspace action title uses the term ``Togiak Village'' after the town's name, and the airport name is ``Togiak Airport''. The amended approaches are (1) Non Directional Beacon (NDB)/Distance Measuring Equipment (DME)-A, Amendment (Amdt) 1 and (2) NDB-B, Amdt 1. The new approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) RWY 03, Original; and (2) RNAV (GPS) RWY 21, Original. Class E controlled airspace [[Page 20872]] extending upward from 700 ft. above the surface in the Togiak Airport area is revised by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed. The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order. The Rule This amendment to 14 CFR part 71 revises Class E airspace at the Togiak Airport, Alaska. This Class E airspace is revised to accommodate aircraft executing two new and two revised SIAPs, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at Togiak Airport, Alaska. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore--(1) Is not a ``significant regulatory action'' under Executive Order 12866; (2) is not a ``significant rule'' under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Togiak Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment 0 In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71--DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 0 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. Sec. 71.1 [Amended] 0 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, is amended as follows: * * * * * Paragraph 6005 Class E airspace extending upward from 700 feet or more above the surface of the earth. * * * * * AAL AK E5 Togiak Village, AK [Revised] Togiak Airport, AK (Lat. 59[deg]03'10'' N., long. 160[deg]23'49'' W.) Togiak NDB (Lat. 59[deg]03'50'' N., long. 160[deg]22'27'' W.) That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the Togiak Airport, and within 4 miles west and 8 miles east of the 218[deg] bearing of the Togiak NDB extending from the 6.5-mile radius to 20 miles southwest of the Togiak NDB, and within 4 miles west and 8 miles east of the 019[deg] bearing of the Togiak NDB extending from the 6.5-mile radius to 16 miles northeast of the Togiak NDB. * * * * * Issued in Anchorage, AK, on April 14, 2006. Anthony M. Wylie, Manager, Safety, Area Flight Service Operations. [FR Doc. 06-3860 Filed 4-21-06; 8:45 am] BILLING CODE 4910-13-P

usgpo

2024-10-08T14:08:33.103007

FR

FR-2006-04-24/06-3859

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Pages 20872-20873] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3859] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2005-23276; Airspace Docket No. 05-AAL-41] Establishment of Class E Airspace; Minchumina, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final Rule; correction. ----------------------------------------------------------------------- SUMMARY: This action corrects an error in the airspace description contained in a Final Rule that was published in the Federal Register on Wednesday, April 5, 2006 (71 FR 16997). Airspace Docket No. 05-AAL-41. DATES: Effective Date: 0901 UTC, June 8, 2006. FOR FURTHER INFORMATION CONTACT: Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail: [email protected]. Internet address: http://www.alaska.faa.gov/at. SUPPLEMENTARY INFORMATION: History Federal Register Document 06-3249, Airspace Docket No. 05-AAL-41, published on Wednesday, April 5, 2006 (71 FR 16997), listed the legal description as a revision to Class E airspace at Minchumina, AK. The airspace is new and the legal description should be written accordingly. This action corrects that error. Correction to Final Rule 0 Accordingly, pursuant to the authority delegated to me, the airspace description of the Class E airspace published in the Federal Register, Wednesday, April 5, 2006 (71 FR 16997), (FR Doc 06-3249, page 16997, column 3) is corrected as follows: Sec. 71.1 [Corrected] * * * * * AAL AK E5 Minchumina, AK [New] Minchumina, AK (Lat. 63[deg]53'10'' N., Long. 152[deg]18'07'' W.) [[Page 20873]] That airspace extending upward from 700 feet above the surface within a 7-mile radius of the Minchumina Airport. * * * * * Issued in Anchorage, AK, on April 14, 2006. Anthony M. Wylie, Manager, Safety, Area Flight Service Operations. [FR Doc. 06-3859 Filed 4-21-06; 8:45 am] BILLING CODE 4910-13-P

usgpo

2024-10-08T14:08:33.127554

FR

FR-2006-04-24/06-3861

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Pages 20873-20874] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3861] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-23712; Airspace Docket No. 06-AAL-05] Establishment of Class E Airspace; Kuparuk, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final Rule. ----------------------------------------------------------------------- SUMMARY: This action establishes Class E airspace at Kuparuk, AK to provide adequate controlled airspace to contain aircraft executing eight Special Standard Instrument Approach Procedures (SIAPs). This rule results in new Class E airspace established upward from 700 feet (ft.) above the surface at Ugnu-Kuparuk Airport, AK. DATES: Effective Date: 0901 UTC, August 3, 2006. FOR FURTHER INFORMATION CONTACT: Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail: [email protected]. Internet address: http://www.alaska.faa.gov/at. SUPPLEMENTARY INFORMATION: History On Wednesday, February 15, 2006, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace upward from 700 ft. above the surface at Ugnu-Kuparuk Airport, AK (71 FR 7890). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing eight Special SIAPs for the Ugnu-Kuparuk Airport. The Special approaches were listed as being new and revised in the Notice of Proposed Rulemaking (NPRM). However, all eight Special SIAPs were already in existence. Thus, there are no instrument approach procedure changes. This action is taken to fulfill the FAA policy of establishing controlled airspace at private airfields with existing instrument procedures. Class E controlled airspace extending upward from 700 ft. above the surface in the Ugnu-Kuparuk Airport area is created by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed. Additionally, the airspace action title in the NPRM should have been listed as ``Establishment of Class E Airspace; Kuparuk, AK'' instead of using the term ``Ugnu-Kuparuk''. The legal description title is taken from the geographic location, not the airport's name. The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order. The Rule This amendment to 14 CFR part 71 creates Class E airspace at Kuparuk, Alaska. This Class E airspace is established to accommodate aircraft executing existing Special SIAPs. The intended effect of this rule is to provide controlled airspace for Instrument Flight Rule (IFR) operations at Ugnu-Kuparuk Airport, Kuparuk, Alaska. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore--(1) is not a ``significant regulatory action'' under Executive Order 12866; (2) is not a ``significant rule'' under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Ugnu-Kuparuk Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment 0 In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71--DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 0 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. Sec. 71.1 [Amended] 0 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, is amended as follows: * * * * * Paragraph 6005 Class E airspace extending upward from 700 feet or more above the surface of the earth. * * * * * AAL AK E5 Kuparuk, AK [New] Ugnu-Kuparuk Airport, AK (Lat. 70[deg]19'51'' N., long. 149[deg]35'51'' W.) Pitsand NDB (Lat. 70[deg]19'41'' N., long. 149[deg]38'07'' W.) That airspace extending upward from 700 feet above the surface within a 7-mile radius of the Ugnu-Kuparuk Airport, and within 8 miles north and 4 miles south of the 078[deg] bearing of the Pitsand NDB extending from the 7-mile radius to 16 miles east of the Pitsand NDB and within 8 miles north and 4 miles south of the 258[deg] bearing of the [[Page 20874]] Pitsand NDB extending from the 7-mile radius to 16 miles west of the Pitsand NDB. * * * * * Issued in Anchorage, AK, on April 14, 2006. Anthony M. Wylie, Manager, Safety, Area Flight Service Operations. [FR Doc. 06-3861 Filed 4-21-06; 8:45 am] BILLING CODE 4910-13-P

usgpo

2024-10-08T14:08:33.144174

FR

FR-2006-04-24/06-3862

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Pages 20874-20875] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3862] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-23711; Airspace Docket No. 06-AAL-04] Revision of Class E Airspace; Middleton Island, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This action revises Class E airspace at Middleton Island, AK to provide adequate controlled airspace to contain aircraft executing two new and two amended Standard Instrument Approach Procedures (SIAPs). This rule results in revised Class E airspace established upward from 700 feet (ft.) and 1,200 ft. above the surface at Middleton Island, AK. DATES: Effective Date: 0901 UTC, August 3, 2006. FOR FURTHER INFORMATION CONTACT: Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail: [email protected]. Internet address: http://www.alaska.faa.gov/at. SUPPLEMENTARY INFORMATION: History On Wednesday, February 15, 2006, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Middleton Island, AK (71 FR 7891). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new and two amended SIAPs for the Middleton Island Airport. The amended approaches are (1) Very High Frequency Omni- directional Range (VOR) Runway (RWY) 01, Amendment (Amdt) 2; and (2) VOR/Distance Measuring Equipment (DME) RWY 19, Amdt 5. The new approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) RWY 01, Original; and (2) RNAV (GPS) RWY 19, Original. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Middleton Island Airport area is revised by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed. The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order. The Rule This amendment to 14 CFR part 71 revises Class E airspace at the Middleton Island Airport, Alaska. This Class E airspace is revised to accommodate aircraft executing two new and two revised SIAPs, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at Middleton Island Airport, Alaska. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore--(1) Is not a ``significant regulatory action'' under Executive Order 12866; (2) is not a ``significant rule'' under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Middleton Island Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment 0 In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71--DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 0 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. Sec. 71.1 [Amended] 0 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, is amended as follows: * * * * * Paragraph 6005 Class E airspace extending upward from 700 feet or more above the surface of the earth. * * * * * AAL AK E5 Middleton Island, AK [Revised] Middleton Island Airport, AK (Lat. 59[deg]27[min]00[sec] N., long. 146[deg]18[min]26[sec] W.) Middleton Island VOR/DME (Lat. 59[deg]25[min]19[sec] N., long. 146[deg]21[min]00[sec] W.) That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the Middleton Island Airport, and within 4 miles either side of the 038[deg] radial of the Middleton Island VOR/DME extending from the 6.5-mile radius to 12 miles northeast of the VOR/DME, and that airspace extending upward from 1,200 feet above the surface within a 42-mile radius of the Middleton Island VOR/DME. * * * * * [[Page 20875]] Issued in Anchorage, AK, on April 14, 2006. Anthony M. Wylie, Manager, Safety, Area Flight Service Operations. [FR Doc. 06-3862 Filed 4-21-06; 8:45 am] BILLING CODE 4910-13-P

usgpo

2024-10-08T14:08:33.162708

FR

FR-2006-04-24/06-3863

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Page 20875] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3863] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2005-22857; Airspace Docket No. 05-AAL-37] Establishment of Class E Airspace; Galbraith Lake, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This action establishes Class E airspace at Galbraith Lake, AK to provide adequate controlled airspace to contain aircraft executing two amended Special Standard Instrument Approach Procedures (SIAPs). This rule results in new Class E airspace established upward from 700 feet (ft.) above the surface at Galbraith Lake, AK. DATES: Effective Date: 0901 UTC, August 3, 2006. FOR FURTHER INFORMATION CONTACT: Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail: [email protected]. Internet address: http://www.alaska.faa.gov/at. SUPPLEMENTARY INFORMATION: History On Wednesday, February 15, 2006, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace upward from 700 ft. above the surface at Galbraith Lake, AK (71 FR 7887). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two amended Special SIAPs for the Galbraith Lake Airport. The approaches are (1) Non-directional Beacon (NDB) Distance Measuring Equipment (DME) Runway (RWY) 12, amendment (Amdt) 2 and (2) Microwave Landing System (MLS) Runway 12, Amdt 1. The Notice of Proposed Rulemaking airport coordinate notation was not accurate. The correction has been made in this document. Class E controlled airspace extending upward from 700 ft. above the surface in the Galbraith Lake Airport area is created by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed. The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order. The Rule This amendment to 14 CFR part 71 creates Class E airspace at Galbraith Lake, Alaska. This Class E airspace is established to accommodate aircraft executing two revised Special SIAPs. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at Galbraith Lake Airport, Galbraith Lake, Alaska. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore--(1) Is not a ``significant regulatory action'' under Executive Order 12866; (2) is not a ``significant rule'' under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Galbraith Lake Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment 0 In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71--DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 0 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. Sec. 71.1 [Amended] 0 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, is amended as follows: * * * * * Paragraph 6005 Class E airspace extending upward from 700 feet or more above the surface of the earth. * * * * * AAL AK E5 Galbraith Lake, AK [New] Galbraith Lake Airport, AK (Lat. 68[deg]28[min]48[sec] N., long. 149[deg]29[min]14[sec] W.) That airspace extending upward from 700 feet above the surface within a 9.5-mile radius of the Galbraith Lake Airport. * * * * * Issued in Anchorage, AK, on April 14, 2006. Anthony M. Wylie, Manager, Safety, Area Flight Service Operations. [FR Doc. 06-3863 Filed 4-21-06; 8:45 am] BILLING CODE 4910-13-P

usgpo

2024-10-08T14:08:33.183329

FR

FR-2006-04-24/06-3864

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Page 20876] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3864] [[Page 20876]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket FAA 2004-19684; Airspace Docket 04-ANM-24] Revision of Class E Airspace; Herlong, CA AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule will revise the Class E airspace area at Herlong, CA. Additional controlled airspace is necessary for the safety of Instrument Flight Rules (IFR) aircraft during airborne holding. Holding airspace is designed with specific altitudes and lateral boundaries within controlled airspace. This airborne holding procedure is also an integral part of a new Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedure (SIAP) at the Amedee Army Air Field (AFF), Herlong, CA. DATES: Effective Date: 0901 UTC, August 3, 2006. FOR FURTHER INFORMATION CONTACT: Ed Haeseker, Federal Aviation Administration, Western En Route and Oceanic Area Office, Airspace Branch, 1601 Lind Avenue, SW., Renton, WA 98055-4056; telephone (425) 227-2527. SUPPLEMENTARY INFORMATION: History On July 12, 2005, the FAA proposed to amend Title 14 Code of Federal Regulations (14 CFR) part 71 by revising Class E airspace at Herlong, CA (70 FR 39973). The proposed action would provide additional controlled airspace for the safety of IFR aircraft executing airborne holding due to weather, traffic congestion, or other operational reasons. This additional controlled airspace is also necessary for the safety of aircraft transitioning to a new RNAV (GPS) and ILS SIAP at Amedee AAF, Herlong, CA. Interested parties were invited to participate in this rule making proceeding by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9N, dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that order. The Rule This amendment to 14 CFR part 71 revises Class E airspace at Herlong, CA, by providing additional controlled airspace for the safety of IFR aircraft during airborne holding. Holding occurs during adverse weather conditions, traffic congestion, or for other operational reasons. This holding procedure is also an integral part of a new RNAV (GPS) (SIAP) at the Amedee AAF, Herlong, CA. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep the regulations current. Therefore, this regulation: (1) Is not a ``significant regulatory action'' under Executive Order 12866; (2) is not a ``significant rule'' under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment 0 In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71--DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; ROUTES; AND REPORTING POINTS. 0 1. The authority citation for 14 CFR part 71 continues to read follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. Sec. 71.1 [Amended] 0 2. The incorporation by reference in 14 CFR part 71.1 of the Federal Aviation Administration Order 7400.9N, Airspace Designations and Reporting Points, dated September 01, 2005, and effective September 15, 2005, is amended as follows: Paragraph 6005. Class E airspace areas extending upward from 700 feet or more above the surface of the earth. * * * * * ANM CA E5 Herlong, CA [Revised] Amedee VOR/DME (Lat. 40[deg]16'04'' N., long. 120[deg]09'07'' W.) That airspace extending upward from 700 feet above the surface of the earth within an area bounded by a line beginning at lat. 40[deg]20'15'' N., long. 119[deg]48'27'' W.; to lat. 40[deg]07'58'' N., 119[deg]51'47'' W.; to lat. 40[deg]11'30'' N., long. 120[deg]16'47'' W.; to lat. 40[deg]20'32'' N., long. 120[deg]14'34'' W.; thence to the point of beginning. That airspace extending upward from 1,200 feet above the surface of the earth beginning at lat. 40[deg]00'00'' N., long. 120[deg]00'00'' W.; west to V452; to lat. 40[deg]30'00'' N.; east to lat. 40[deg]30'00'' N., long. 119[deg]16'00'' W.; south to lat. 40[deg]00'00'' N., long. 119[deg]16'00'' W.; west to point of beginning. * * * * * Issued in Seattle, Washington, on March 31, 2006. R.D. Engelke, Acting Area Director, Western En Route and Oceanic Operations. [FR Doc. 06-3864 Filed 4-21-06; 8:45 am] BILLING CODE 4910-13-M

usgpo

2024-10-08T14:08:33.203493

FR

FR-2006-04-24/06-3647

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Pages 20876-20894] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3647] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 730, 732, 734, 738, 740, 742, 743, 746, 748, 750, 752, 762, 770, 772 and 774 [Docket No. 060404096-6096-01] RIN 0694-AD66 Implementation of New Formula for Calculating Computer Performance: Adjusted Peak Performance (APP) in Weighted TeraFLOPS; Bulgaria; XP and MT Controls AGENCY: Bureau of Industry and Security, Commerce. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule amends the Export Administration Regulations to implement the Wassenaar Arrangement's December 2005 agreement to revise the formula for calculating computer performance from Composite Theoretical Performance (CTP) measured in Millions of Theoretical Operations Per Second (MTOPS) to Adjusted Peak Performance (APP) measured in Weighted TeraFLOPS (Trillion Floating point Operations Per Second) (WT). This rule also establishes new control levels in Category 4 of the Commerce Control List (CCL) expressed in WT. In addition, this rule renames License Exception CTP to License Exception APP (Adjusted Peak Performance) to correspond to the new formula. This rule also makes conforming changes to the EAR based on the new computer parameter, such as, revising the parameters for eligibility of License Exception APP. [[Page 20877]] This rule also moves Bulgaria from Computer Tier 3 to Computer Tier 1, removes High Performance Computer (XP) and Missile Technology (MT) controls from certain Export Control Classification Numbers (ECCNs) in Category 4 of the CCL, and removes the section of the EAR dedicated to various requirements for high performance computers. DATES: Effective Dates: This rule is effective on April 24, 2006, with the exception of the movement of Bulgaria from Computer Tier 3 to Computer Tier 1 in section 740.7 of the EAR, which will be effective June 3, 2006. FOR FURTHER INFORMATION CONTACT: For questions of a general nature contact Sharron Cook, Office of Exporter Services, Regulatory Policy Division at (202) 482-2440 or E-Mail: [email protected]. For questions of a technical nature contact Joseph Young, Office of National Security and Technology Transfer Controls at 202-482-4197 or E-Mail: [email protected]. SUPPLEMENTARY INFORMATION: Background The Wassenaar Arrangement The United States is one of 40 states participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Wassenaar Arrangement). The Wassenaar Arrangement contributes to regional and international security and stability by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilizing accumulations of such items. Participating states have committed to exchange information on exports of dual-use goods and technologies to non-participating states for the purposes of enhancing transparency and assisting in developing common understandings of the risks associated with the transfers of these items. In December 2005, the Wassenaar Arrangement met in Plenary session and agreed to implement a new computer performance formula and associated control levels for export control purposes. Composite Theoretical Performance (CTP) to Adjusted Peak Performance (APP) For more than a decade, Composite Theoretical Performance (CTP) has been used for measuring computer performance for the purpose of export control. CTP, expressed in millions of theoretical operations per second (MTOPS), is difficult to calculate and, because of remarkable changes in computer architecture and semiconductor technology, has significant shortcomings in the ranking of computers. As a result of the limitations of CTP and the continued growth of commodity cluster systems, the Administration conducted a comprehensive review of export controls on computer hardware. In 2004, the Departments of Defense and Energy conducted an assessment of U.S. Government requirements and benchmark tests. The review identified a controllable class of high-end proprietary computer systems, a more effective metric for controlling such systems, and a new proposed control level. As a result, the interagency group concerned, including the Departments of Defense, State, Energy and Commerce, concluded that CTP (measured in MTOPS) has been unable to keep up with advances in computer architecture technology, and no longer meets national security objectives. Specifically, the CTP formula does not adequately distinguish between generic commodity systems and vector systems. The CTP formula imprecisely equates off-the-shelf systems based on low-cost widely available microprocessors--computers with lesser national security significance--with high-end special order high performance computers such as vector systems, which have greater national security significance. The CTP calculation takes into account short word length operations. As state-of-the-art computers have evolved, capabilities to perform this class of operations have become ubiquitous in multi-media extensions (MMX) in low-cost commodity microprocessors. The requirement to include these operations when using the CTP formula complicates the calculation and overstates the scientific computational capability of these systems by as much as a factor of two. Even as a formula for this class of computers, CTP has several problems. The CTP formula does not distinguish between architectures, and arguably understates the performance of vector supercomputers relative to aggregations of scalar processors. The inclusion of short word length operations and the current formula for aggregation make the CTP formula unnecessarily complicated to calculate for modern computing architectures, with no offsetting benefit to national security. Since 1999, a number of alternatives to the CTP formula have been suggested. These ranged from dispensing with a ``formula'' and simply counting the number of processors in a computer to implementing more rigorous formulas for measuring computer performance, such as incorporating memory and/or interconnect bandwidth. All of these alternatives raised definitional problems or required even more vendor- proprietary data than is currently necessary for CTP calculations. The Administration's assessment identified a controllable class of high end proprietary computer systems with the most significant national security applications, a more effective formula for identifying such systems, and a new proposed control level. A formula was needed to draw a clear distinction between vector systems which have significantly more value in national security applications and non-vector systems. It was determined that double precision floating- point computation (DP FP) was the most meaningful measure of HPC performance for export control purposes to distinguish between vector and non-vector systems. This distinction is critical to achieving the nation's computer export control policy objectives. By using DP FP performance as the basis for export controls, the inflation introduced by short word length operands in the formula used for calculating CTP is eliminated and the playing field leveled for competing microprocessor architectures. The new control formula based on DP FP is Adjusted Peak Performance (APP) measured in Weighted TeraFLOPS (WT). The APP formula allows for much more targeted control of the high-end, special order HPCs, such as vector systems and proprietary cluster systems, which are of the greatest national security significance. The APP formula is derived from existing industry standards and is easier to calculate than the CTP formula. The APP formula will maintain controls on high-end high performance computers (HPCs) capable of computationally intensive national security operations. The APP formula places more weight on vector systems than non-vector systems. Considering the superior performance of vector supercomputers for some important applications and an analysis of applications and the High Performance Linpack benchmarks, a weighting of 0.9 was selected for vector processors. Currently available HPC systems exhibit a wide range of efficiencies. A weighting factor of 0.3 was appropriate for other classes of non-vector export controlled HPC systems. The 0.3 weighting factor is a rough approximation of the relative performance observed between vector and non-vector HPCs over a representative range of applications. [[Page 20878]] APP provides more consistent treatment for all comparable systems than CTP. Setting of the Control Thresholds The Administration's assessment determined that the appropriate control level for computers using the APP formula is 0.75 WT, which was proposed in the April 2005 meeting of the Wassenaar Arrangement and agreed to at the December 2005 Wassenaar Arrangement Plenary meeting. This determination was based on the Departments of Defense and Energy HPC benchmarks, procurement and usage; the government's ability to control state-of-the-art technology (i.e., proprietary and vector systems); the ability of Tier 3 countries to achieve a given level of performance for range of architectures; and maintenance of a level playing field among comparable products. The 0.75 WT control level recognizes the foreign availability of the computing capacity illustrated by the Chinese commodity cluster systems currently ranked on the Top-500 List of fastest HPCs in the world. The 0.75 WT level continues to control high-end proprietary HPCs, such as those used by the Department of Defense and the Department of Energy for advanced research, development, and simulation, while removing controls on the lower-end, more widely available systems. The Wassenaar Arrangement agreed to set the Basic List control level for computer software and technology at 0.04 WT, and this was based on computer chip manufacturer projections of what chips would be in production by the end of 2007, e.g., a 4 GHz, dual core Itanium processor would have an APP of 0.0384 WT. The Wassenaar Sensitive List threshold for computer development and production technology and software was set at 0.1 WT to limit the production of multi-board computer vector systems, such as the 8 way Cray X1 or the 4 way Cray XE. The EAR also set forth several other computer control levels, for purposes of unilateral anti-terrorism controls and License Exception eligibility, that do not have Wassenaar Arrangement equivalents. This final rule makes conforming changes in these provisions by establishing control levels expressed in WT using the APP formula. These control thresholds were obtained by finding a computer chip that had a CTP equivalent to the CTP threshold control level in the EAR, performing the APP formula on the chip, and then rounding up. For instance, in ECCN 4A994 the CTP threshold is 6 MTOPS. This is very similar in performance to the Intel 386 microprocessor. When the APP formula is applied to the Intel 386, the APP equals 0.00001 WT (after rounding up). National Defense Authorization Act (NDAA) Congressional Notification Requirement Subsections 1211(d) and (e) of the National Defense Authorization Act (NDAA) for FY 1998 (Pub. L. 105-85, November 18, 1997, 111 Stat. 1932) provides that the President must submit a report to Congress 60 days before adjusting the composite theoretical performance level above which exports of digital computers to Tier 3 countries require a license. The President sent a report to Congress on February 3, 2006 that establishes and provides justification for the 0.75 WT control level using the APP formula. Bulgaria This rule removes Bulgaria from Computer Tier 3 and places it in Computer Tier 1. However, due to the requirements in the 1998 National Defense Authorization Act (NDAA), removing Bulgaria from Computer Tier 3 is not effective until 120 days after the Congress receives a report justifying such a removal. This report was sent to Congress on February 3, 2006. Therefore, the movement of Bulgaria from Computer Tier 3 to Computer Tier 1 will become effective on June 3, 2006. Bulgaria is a member of the Wassenaar Arrangement, the Missile Technology Control Regime, the Australia Group, and the Nuclear Suppliers Group. Bulgaria is also a member of the North Atlantic Treaty Organization (NATO). Because of the Bulgarian Government's success in strengthening its export control system, it has been determined that moving Bulgaria from Computer Tier 3 to Computer Tier 1 will not decrease the national security of the United States, and may in fact strengthen it by building stronger coalitions with nations that understand the importance of a strong export control program. This revision will result in fewer license applications, because Bulgaria will be eligible for License Exception APP. In addition, the EAR will no longer require NDAA-based recordkeeping and post shipment verification reporting of exports of high performance computers to Bulgaria. XP Reason for Control This rule removes the reason for control related to high performance computers (XP) from ECCNs 4A001, 4A003, 4D001, 4D002, and 4E001. XP controls were implemented on March 25, 1996, 61 FR 12714, in the regulation entitled, ``Simplification of Export Administration Regulations.'' At the present time, XP controls do not enhance license requirements or license review policies that are already in place under the national security (NS) controls described in Sec. 742.4 of the EAR, the anti-terrorism (AT) controls in various parts of 742, or any other controls in the EAR. The XP control creates more of a burden to the public than assistance. In addition, placing special reporting and recordkeeping requirements in this section is not consistent with the organizational format of the EAR. The EAR has specific parts for special reporting and recordkeeping. For these reasons, this rule removes the reason for control XP from the aforementioned ECCNs. Conforming changes are also made to Sec. 738.2(d)(2)(i)(A) and Sec. 746.3(a)(1) of the EAR. Missile Technology Controls This rule removes the missile technology (MT) control from ECCN 4A003. The MT control in 4A003 applies to digital computers used as ancillary equipment for test facilities and equipment that are controlled by ECCNs 9B005 or 9B005 (both non-MT controlled commodities). This MT control has no corresponding entry on the Missile Technology Control Regime's (MTCR) Annex. The computers that are described on the Missile Technology Control (MTCR) Annex fall under two entries 13.A.1 and 16.A.1. The 13.A.1 entry on the MTCR Annex is for ruggedized or radiation hardened computers and is controlled on the Commerce Control List (CCL) under ECCN 4A101 for MT and AT reasons. The 16.A.1 entry on the MTCR Annex is for hybrid computers for modeling, simulation or design integration of missile or rocket systems or subsystems specified on the MTCR Annex, which is controlled on the CCL under ECCN 4A102 for MT and AT reasons. Therefore, because these computers are controlled under other ECCNs, this rule removes the MT control under ECCN 4A003. Corresponding amendments associated with the removal of the MT controls under ECCN 4A003, include: a. Removing the last sentence of Sec. 740.7(a)(1) of the EAR, which states that computers controlled for missile technology (MT) reasons are not eligible for License Exception APP. Because the only computers eligible for License Exception APP are classified under 4A003 and this rule removes all MT controls from 4A003, this sentence is not necessary. b. Removing the phrase ``and software'' from the last sentence in [[Page 20879]] Sec. 740.7(a)(2) of the EAR, which states, ``Technology and software for computers controlled for missile technology (MT) reasons are not eligible for License Exception CTP.'' However, the only eligible software eligible for License Exception APP is classified under 4D001, and there are no existing MT controls in 4D001. However, there are MT controls in 4E001 for technology for items controlled by 4A001.a and 4A101. c. For the same reasons stated in paragraph (a) above, the last sentence of the first paragraph in Sec. 770.2(l)(1) is removed, which stated, ``Computers controlled in this entry for MT reasons are not eligible for License Exception regardless of the CTP of the computer.'' d. For the same reasons stated in paragraph (a) above, the phrase ``parameters of Missile Technology concern, or'' is removed from the first sentence of the second paragraph in Sec. 770.2(l)(1). e. For the same reasons stated in paragraph (a) above, the second sentence of the second paragraph in Sec. 770.2(l)(1) is removed, which stated, ``This License Exception does not authorize the export or reexport of computers controlled for MT purposes regardless of the CTP.'' Section 742.12 ``High Performance Computers'' The EAR has contained a section for high performance computers (HPCs) for over a decade. The rapid advance in technology created a high demand for information about export controls for computers among those who were not acquainted with the EAR, i.e., individuals using personal computers. Now that the HPC controls are raised to a level such that only high performance computers of the greatest national security concern require a license for export, BIS expects that it will receive fewer license applications for computers. As a result of this shift, there will be less burden on individual users of personal computers. The license requirements that are stated in 742.12 are redundant to those stated in other parts of the EAR, such as national security (Sec. 742.4 of the EAR), anti-terrorism (various sections of part 742), or nonproliferation controls found in part 744. For these reasons, this rule removes section 742.12. However, this rule will preserve the recordkeeping requirement for computers, mandated by the National Defense Authorization Act for FY 1998 (section 1212), by combining it with the special reporting requirements in part 743. In addition, this rule moves the post shipment verification reporting and recordkeeping requirements, mandated by the National Defense Authorization Act of FY 1998 (section 1213) to part 743 ``Special Reporting,'' under a new section 743.2 ``High Performance Computers: Post Shipment Verification Reporting.'' In addition, this rule revises Sec. 762.2(b)(6) of the EAR that referred to the recordkeeping requirements that were in Sec. 742.12 of the EAR, to reference section 743.2 where the recordkeeping requirement has been moved. In conformance with the removal of Sec. 742.12, this rule revises a phrase in Sec. 734.4(a)(1) of the EAR. The phrase stated ``to Computer Tier 4 countries described in Sec. 742.12 of the EAR'' and is revised to read ``to Cuba, Iran, Libya, North Korea, Sudan, and Syria.'' All references to Computer Tier 4 are no longer necessary, because the license requirements and license review policy for these countries is found in either part 736, part 746, or part 742 of the EAR depending generally on it's status as a country that supports terrorism or its embargo status. In addition, this rule removes Supplement No. 3 to part 742 ``High Performance Computers; Safeguard Conditions and Related Information,'' because a sample security safeguard plan can be found on BIS's Web site at http://www.bis.doc.gov/hpcs/SecuritySafeguardPlans.html. The requirement for this security safeguard plan is added to paragraph (c)(2) of Supplement No. 2 to part 748 ``Unique Application and Submission Requirements'' of the EAR. Section 740.7 License Exception APP (Formerly License Exception CTP) Because this rule changes the computer formula for determining computer performance from Composite Theoretical Performance (CTP) to Adjusted Peak Performance (APP), this rule revises the license exception symbol for License Exception CTP to ``APP.'' Hereafter, License Exception CTP will be known as License Exception APP. This rule also makes conforming changes throughout the EAR as a result of this change. This rule also makes ``use'' technology equal to or less than 0.75 WT eligible for export under License Exception APP to Computer Tier 3 destinations and to Computer Tier 1 destinations, other than the destinations that are listed in Sec. 740.7(c)(3)(i) of the EAR. The 0.75 WT control threshold is consistent with levels agreed to by the Wassenaar Arrangement. The Wassenaar Arrangement agreed that development and production technology and source code for computers with an APP exceeding 0.1 Weighted TeraFLOPS (WT) is sensitive for conventional arms purposes. Therefore, eligibility under License Exception APP for development and production technology and source code to Computer Tier 3 destinations and to Computer Tier 1 destinations, other than the destinations that are listed in Sec. 740.7(c)(3)(i) of the EAR, is set at an APP of less than or equal to 0.1 WT. However, eligibility under License Exception APP for development and production technology and source code to Computer Tier 1 destinations listed in Sec. 740.7(c)(3)(i) of the EAR is set at an APP of less than or equal to 0.75 WT, because these destinations are of lesser national security concern. Supplement No. 2 to Part 748 This rule clarifies the phrase ``according to the principal function of the equipment,'' by replacing it with references to Notes in Category 5 part 1 and part 2, where the applicant can find information to guide them about Category 5 telecommunication and information security functions. In paragraph (c), this rule deletes the phrase ``certifiable multi-level security or certifiable user isolation functions'' because this former 5A002 sub-item has been deleted. This rule also removes paragraph (c)(2), because Category 4 has not contained Advisory Notes for over a decade. In place of text that was in paragraph (c)(2), this rule adds a paragraph describing the security safeguard plan requirement. The United States requires security safeguards for exports, reexports, and in-country transfers of High Performance Computers (HPCs) to ensure that they are used for peaceful purposes. If you are submitting a license application for an export, reexport, or in-country transfer of a high performance computer to or within a destination in Computer Tier 3 (see Sec. 740.7(c)(1) of the EAR) or to Cuba, Iran, Libya, North Korea, Sudan, or Syria you must include with your license application a security safeguard plan signed by the end-user, who may also be the ultimate consignee. This requirement also applies to exports, reexports, and in-country transfers of components or electronic assemblies to upgrade existing ``computer'' installations in those countries. A sample security safeguard plan is posted on BIS's webpage at http://www.bis.doc.gov/hpcs/SecuritySafeguardPlans.html. In addition, this rule makes conforming changes to the table ``Information Collection Requirements Under the Paperwork Reduction Act: OMB Control Numbers'' in Supplement No. 1 to part [[Page 20880]] 730 to change the reference to where the safeguard requirements are located in the EAR. Section 750.4(b) Actions Not Included in Processing Time Calculations On May 11, 1995, BIS published a proposed rule for the simplification of the EAR (60 FR 25270) that contained the Acting Secretary of State's determination of December 28, 1993, that five categories of multilaterally controlled items would be controlled under section 6(j). License applications for certain items would be reviewed under the 6(j) procedures. This rule was made final on March 25, 1996 (61 FR 12714). One category of items subject to the new 6(j) procedure was those subject to national security controls, except national security controlled digital computers with a Composite Theoretical Performance (CTP) of 500 Million Theoretical Operations Per Second (MTOPS) or less. At the time, and until 1998, the NS control level for computers was 260 MTOPS (then it increased to 2,000 MTOPS). So until 1998, computers controlled for NS reasons were not subject to 6(j) requirements if they were between 260 and 500 MTOPS. Although the NS control level for computers was increased several times, this computer level in this section was repeatedly overlooked. This rule corrects this error by removing the exemption for computers with a CTP of 500 MTOPS from a Congressional 30-day notification requirement under section 6(j) of the Export Administration Act, as amended (EAA), prior to the issuance of the license for any digital computers destined to the military, police, intelligence or other sensitive end-users located in designated terrorist-supporting countries. This exemption has been overtaken by technological advancements, i.e., computers controlled for NS reasons with a CTP of 500 MTOPS no longer exist today. This rule does not change the requirement for Congressional notification for all items controlled for national security reasons to end users set forth above. Computers classified by ECCN 4A003 are controlled for national security reasons when the APP exceeds 0.75 WT, as implemented by this rule. Conforming Changes This rule makes the following conforming changes: With regard to License Exception CTP being changed to License Exception APP: -------------------------------------------------------------------------------------------------------------------------------------------------------- EAR citation Subject matter -------------------------------------------------------------------------------------------------------------------------------------------------------- Sec. 732.4(b)(3)(iii) and (b)(3)(iv)... Steps regarding License Exceptions. Sec. 740.7............................. License Exception CTP. Sec. 743.1(b)(1)....................... Wassenaar Arrangement special reporting requirements. Sec. 746.3(c).......................... License Exceptions for Iraq. EECN 4A003............................... License Exception section, License Exception CTP. ECCN 4D001............................... License Exception section, License Exception CTP. ECCN 4E01................................ License Exception section, License Exception CTP. -------------------------------------------------------------------------------------------------------------------------------------------------------- With regard to references to the computer metric CTP, without reference to a specific MTOPS limit: -------------------------------------------------------------------------------------------------------------------------------------------------------- EAR citation Subject matter -------------------------------------------------------------------------------------------------------------------------------------------------------- Sec. 740.11(a)(4)...................... License Exception GOV. Sec. 740.11(c)(4)...................... License Exception GOV. Sec. 743.1(c)(2)....................... Reference to formula for calculating APP. Sec. 743.2 (c)(7)...................... Information that must be included in the Post Shipment Verification Report. Supplement No. 1 to part 748, Block 22(b) Multipurpose Application Instructions. Supplement No. 2 to part 748, paragraph Digital Computers, telecommunications, and related equipment. (c). Supp. No. 1 to part 752, (b)............. Instructions for completing form BIS-748P-A. Sec. 770.2(l).......................... Interpretation 12: Computers. ECCN 4A003.c............................. Electronic Assemblies. ECCN 4A994 Note 1 to 4A994.c............. Electronic Assemblies. ECCN 4D001.b.2........................... Electronic Assemblies. ECCN 4E001.b.2........................... Electronic Assemblies. -------------------------------------------------------------------------------------------------------------------------------------------------------- With regard to a change in computer metric changes from CTP to APP: ---------------------------------------------------------------------------------------------------------------- EAR citation Subject matter Prior CTP in MTOPS New APP in WT ---------------------------------------------------------------------------------------------------------------- Sec. 734.4(a)(1).............. De minimis eligibility 190,000................. 0.75. for foreign-made computers going to Computer Tier 3 destinations. Sec. 734.4(a)(1).............. De minimis eligibility 28,000.................. .002. for foreign-made computers going to Cuba, Iran, Libya, North Korea, Sudan, and Syria. Sec. 740.7(c)(3)(ii).......... Development and 190,000................. 0.1. Production technology and source code eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in Sec. 740.7(c)(3)(i). [[Page 20881]] Sec. 740.7(c)(3)(iii) (new Use technology and 190,000................. 0.75. paragraph). source code eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in Sec. 740.7(c)(3)(i). Sec. 740.7(d)(3)(i)........... Development and 190,000................. 0.1. Production technology and source code eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations. Sec. 740.7(d)(3)(ii) new Use technology and 190,000................. 0.75. paragraph. source code eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations. 740.9(a)(2)(i)(B)(1)............ License Exception TMP, 6,500................... 0.0015. Tools of Trade, Sudan, eligible computers under 4A994. Sec. 740.19(a)(2)(iv)......... License Exception USPL, 12,000.................. 0.003. eligible AT controlled computers (4A994) to U.S. persons in Libya. Supp. No. 2 to part 742(c)(24).. Heading for digital 6....................... 0.00001. computer license policy destined to designated terrorist supporting countries. Supp. No. 2 to part N. Korea license policy 2,000................... 0.0004. 742(c)(24)(iv)(A) and (B). for digital computers. Sec. 743.1(c)(2).............. Wassenaar Arrangement 190,000................. 0.1. Special Reporting Requirements for computer technology and software for the development and production of computers. Sec. 743.2 (new), moved from Post Shipment 190,000................. 0.75. 742.12(b)(3)(iv). Verification Reporting and recordkeeping for Computer Tier 3 destinations. 750.4(b)(6)(ii)(A).............. Digital Computers not Less than 500........... Removed. subject to a Congressional 500 notification requirement when the issuance of the license for any military, police, intelligence or other sensitive end- user in designated terrorist-supporting country. ECCN 4A003...................... License Requirement 6 and 190,000........... 0.00001 and 0.75. section, AT controls (refer to ECCN 4A994). ECCN 4A003...................... License Requirement 190,000................. Removed. section, XP controls. ECCN 4A003...................... Note in License 190,000................. 0.75 (two times). Requirement section. ECCN 4A994...................... ECCN 4A994.b............ 6....................... 0.00001. ECCN 4A994...................... ECCN 4A994.f equipment 8.5..................... 0.00001. for signal processing or image enhancement. ECCN 4D001...................... License Exception 190,000................. 0.1. section, TSR. ECCN 4E001...................... License Exception 190,000................. 0.1. section, TSR. ---------------------------------------------------------------------------------------------------------------- With regard to the placement of the CTP formula: Because BIS has decided to move the formula for CTP from the end of Category 4 to the end of Category 3, this rule revises the definition of ``Composite Theoretical Performance'' (``CTP'') to remove references to Category 4, and revises the information about where the formula for CTP may be found. The formula for CTP is no longer necessary in Category 4, because CTP has been replaced by APP throughout Category 4. However, the formula for CTP is still necessary for Category 3, because it is used in 3A991 (License Requirement Note and 3A991.a.1), 3E001 (License Exception CIV), and 3E002 (Heading and License Exception CIV). With regard to ``computing elements'': This rule implements an amendment to 4A003.c to revise the term ``computing elements'' (``CE'')'' to read ``processors.'' There are two conforming changes to this revision in Sec. 740.11(a)(4) and Sec. 740.11(c)(4) under License Exception GOV. Category 3--Electronics This rule moves the technical note on how to calculate the Composite Theoretical Performance (CTP) from the end of Category 4 to the end of Category 3, because the implementation of Adjusted Peak Performance removed all references to CTP in Category 4 and CTP only remains in Category 3. ECCN 3A991 is amended by revising License Requirement Note 1 to: (1) Spell out the acronym CTP, and (2) Add a reference about where to find information on how to calculate CTP. ECCNs 3E001 and 3E002 are amended by revising License Exception CIV text to spell out the acronym CTP, for clarification and to indicate that Composite Theoretical Performance is a defined term in section 772.1. Implementation of Wassenaar Arrangement Agreements The following revisions are consistent with agreements made by the Wassenaar Arrangement to replace the CTP formula for calculating composite theoretical performance with the APP formula: Category 4--Computers Category 4 is amended by adding the formula for Adjusted Peak Performance (APP) after EAR99. ECCN 4A001 is amended by: a. Removing High Performance Computer (XP) controls from the License Requirements section for reasons set forth above in this background section of the rule; and b. Adding in the License Requirement Note a reference to the paragraph (4A001.a.2) that triggers the Wassenaar reporting requirement in Sec. 743.1 of the EAR. ECCN 4A003 is amended by: a. Removing the Missile Technology (MT) and High Performance Computer (XP) controls paragraph in the License Requirement section for reasons set forth above in the background section of this rule; b. Revising the parameter and value in 4A003.b from CTP to APP and from 190,000 MTOPS to 0.75 WT; and c. Revising the text and parameter in 4A003.c (electronic assemblies) from ``computing elements (CE)'' to ``processors.'' ECCN 4A994 is amended by: [[Page 20882]] a. Revising the parameter and value in 4A994.b from CTP to APP and from 6 MTOPS to 0.00001 WT; b. Replacing the reference to CTP with APP in Note 1 to 4A994.c; and c. Revising the parameter and value in 4A994.f from CTP to APP and from 8.5 MTOPS to 0.00001 WT, because there is little difference between the APP in 4A994.b and this paragraph and BIS believes that it is easier to comply with regulations when numbers are harmonized. ECCN 4D001 is amended by revising: a. Removing the High Performance Computer (XP) controls paragraph in the License Requirement section for reasons set forth above in the background section of this rule; b. Revising the parameter and value in 4D001.b.1 from CTP to APP and from 75,000 MTOPS to 0.04 WT; and c. Revising the text and parameter in 4D001.b.2 from ``computing elements (CE)'' to ``processors'' and the parameter CTP to APP. ECCN 4D002 is amended by removing the High Performance Computer (XP) controls paragraph in the License Requirement section for reasons set forth above in the background section of this rule. ECCN 4E001 is amended by revising: a. Removing the High Performance Computer (XP) controls paragraph in the License Requirement section for reasons set forth above in the background section of this rule; b. Revising the parameter and value in 4E001.b.1 from CTP to APP and from 75,000 MTOPS to 0.04 WT; and c. Revising the text and parameter in 4E001.b.2 from ``computing elements (CE)'' to ``processors'' and the parameter CTP to APP. Definitions This rule amends 772.1, Definitions of Terms as Used in the Export Administration Regulations (EAR) by adding the definition of ``Adjusted Peak Performance'' (``APP''). Effect on License Applications BIS expects that the implementation of the new computer metric Adjusted Peak Performance (APP) will decrease the number of high performance computer (ECCN 4A003.b) license applications received by BIS by about 90 percent (i.e., 6 fewer applications projected) over the next 6 months. The new licensing threshold provides a relaxation of HPC export controls because all computers that are equal to or below 190,000 MTOPS are also below 0.75 WT, while certain computers with performance currently measured as exceeding 190,000 MTOPS do not exceed 0.75 WT. The amount of relaxation that may occur for any particular family of computers will depend on the technical specifics of the system architecture and the processor used in the family. Other Revisions This rule also makes an editorial correction to Sec. 770.2(l)(2), Interpretation 12: Computers by removing reference to 4A003.d and 4A003.f, which are currently reserved and not in use. Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 2, 2005, 70 FR 45273 (August 5, 2005), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. Rulemaking Requirements 1. This final rule has been determined to be not significant for purposes of E.O. 12866. 2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule involves three collections of information subject to the PRA. The first collection has been approved by OMB under control number 0694-0088, ``Multi-Purpose Application,'' and carries a burden hour estimate of 58 minutes for a manual or electronic submission. The second collection has been approved by OMB under control number 0694-0106, ``Reporting and Recordkeeping Requirements under the Wassenaar Arrangement,'' and carries a burden hour estimate of 21 minutes for a manual or electronic submission. The third collection has been approved by OMB under control number 0694-0073, ``Export Controls of High Performance Computers,'' and carries a burden hour estimate of 78 hours for a manual or electronic submission. This rule is expected to result in an immediate decrease in license applications, and in associated reporting and support documentation requirements, for high performance computers; however, this decrease may be reduced over time as higher performance systems are marketed. Send comments regarding these burden estimates or any other aspect of these collections of information, including suggestions for reducing the burden, to OMB Desk Officer, New Executive Office Building, Washington, DC 20503; and to the Office of Administration, Bureau of Industry and Security, Department of Commerce, 14th and Pennsylvania Avenue, NW., Room 6883, Washington, DC 20230. 3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132. 4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Sharron Cook, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044. List of Subjects 15 CFR Part 730 Administrative practice and procedure, Advisory committees, Exports, Reporting and recordkeeping requirements, Strategic and critical materials. 15 CFR Parts 732, 740, 748, 750, and 752 Administrative practice and procedure, Exports, Reporting and recordkeeping requirements. 15 CFR Part 734 Administrative practice and procedure, Exports, Inventions and patents, Research Science and technology. 15 CFR Part 742 Exports, Terrorism. [[Page 20883]] 15 CFR Part 743 Administrative practice and procedure, Reporting and recordkeeping requirements. 15 CFR Parts 746 and 774 Exports, Reporting and recordkeeping requirements. 15 CFR Part 762 Administrative practice and procedure, Business and industry, Confidential business information, Exports, Reporting and recordkeeping requirements. 15 CFR Parts 738, 770 and 772 Exports. 0 Accordingly, parts 730, 732, 734, 738, 740, 742, 743, 746, 748, 750, 752, 762, 770, 772 and 774 of the Export Administration Regulations (15 CFR parts 730-799) are amended as follows: PART 730--[AMENDED] 0 1. The authority citation for part 730 is revised to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C. 287c; 22 U.S.C. 2151 note, Pub. L. 108-175; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 12002, 42 FR 35623, 3 CFR, 1977 Comp., p. 133; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12214, 45 FR 29783, 3 CFR, 1980 Comp., p. 256; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 179; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 12981, 60 FR 62981, 3 CFR, 1995 Comp., p. 419; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; E.O. 13338, 69 FR 26751, May 13, 2004; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005); Notice of October 25, 2005, 70 FR 62027 (October 27, 2005). 0 2. Supplement No. 1 to part 730 is amended by revising ``Sec. 742.12, Supplement No. 3 to part 742, and Sec. 762.2(b)'' to read ``Supplement No. 2 to part 748, paragraph (c)(2), and Sec. 762.2(b)'' in the third column ``Reference in the EAR'' of row ``0694-0073''. PART 732--[AMENDED] 0 3. The authority citation for part 732 is revised to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). Sec. 732.4 [Amended] 0 4. Section 732.4 is amended by 0 a. Revising the phrase ``List-based License Exceptions (LVS, GBS, CIV, TSR, and CTP)'' to read ``List-based License Exceptions (LVS, GBS, CIV, TSR, and APP) in paragraph (b)(3)(iii); and 0 b. Revising the phrase ``under License Exceptions GBS, CIV, LVS, CTP, TSR, or GOV,'' to read ``under License Exceptions GBS, CIV, LVS, APP, TSR, or GOV,'' in paragraph (b)(3)(iv). PART 734--[AMENDED] 0 1. The authority citation for part 734 is revised to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of November 4, 2004, 69 FR 64637 (November 8, 2004); Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). 0 2. Section 734.4 is amended by revising paragraph (a)(1) to read as follows: Sec. 734.4 De minimis U.S. content. (a) Items for which there is no de minimis level. (1) There is no de minimis level for the export from a foreign country of a foreign- made computer with an Adjusted Peak Performance (APP) exceeding 0.75 Weighted TeraFLOPS (WT) containing U.S.-origin controlled semiconductors (other than memory circuits) classified under ECCN 3A001 to Computer Tier 3; or exceeding an APP of 0.002 WT containing U.S.- origin controlled semiconductors (other than memory circuits) classified under ECCN 3A001 or high speed interconnect devices (ECCN 4A994.j) to Cuba, Iran, Libya, North Korea, Sudan, and Syria. * * * * * PART 738--[AMENDED] 0 1. The authority citation for part 738 is revised to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C. 287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). Sec. 738.2 [Amended] 0 2. Section 738.2 is amended by removing the phrase ``XP Computers'' from the list at the end of paragraph (d)(2)(i)(A). PART 740--[AMENDED] 0 3. The authority citation for part 740 continues to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; Sec. 901-911, Pub. L. 106-387; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). 0 4. Section 740.7 is revised to read as follows: Sec. 740.7 Computers (APP). (a) Scope. (1) Commodities. License Exception APP authorizes exports and reexports of computers, including ``electronic assemblies'' and specially designed components therefor controlled by ECCN 4A003, except ECCN 4A003.e (equipment performing analog-to-digital conversions exceeding the limits in ECCN 3A001.a.5.a), exported or reexported separately or as part of a system for consumption in Computer Tier countries as provided by this section. When evaluating your computer to determine License Exception APP eligibility, use the APP parameter to the exclusion of other technical parameters in ECCN 4A003. (2) Technology and software. License Exception APP authorizes exports of technology and software controlled by ECCNs 4D001 and 4E001 specially designed or modified for the ``development'', ``production'', or ``use'' of computers, including ``electronic assemblies'' and specially designed components therefor classified in ECCN 4A003, except ECCN 4A003.e (equipment performing analog-to-digital conversions exceeding the limits in ECCN 3A001.a.5.a), to Computer Tier countries as provided by this section. Technology for computers controlled for missile technology (MT) reasons are not eligible for License Exception APP. (b) Restrictions. (1) Related equipment controlled under ECCN 4A003.g may not be exported or reexported under this License Exception when exported or reexported separately from eligible [[Page 20884]] computers authorized under this License Exception. (2) Access and release restrictions. (i) Computers and software. Computers and software eligible for License Exception APP may not be accessed either physically or computationally by nationals of Cuba, Iran, Libya, North Korea, Sudan, or Syria, except that commercial consignees described in Supplement No. 3 to part 742 of the EAR are prohibited only from giving such nationals user-accessible programmability. (ii) Technology and source code. Technology and source code eligible for License Exception APP may not be released to nationals of Cuba, Iran, Libya, North Korea, Sudan, or Syria. (3) Computers and software eligible for License Exception APP may not be reexported or transferred (in country) without prior authorization from BIS, i.e., a license, a permissive reexport, another License Exception, or ``No License Required''. This restriction must be conveyed to the consignee, via the Destination Control Statement, see Sec. 758.6 of the EAR. Additionally, the end-use and end-user restrictions in paragraph (b)(5) of this section must be conveyed to any consignee in Computer Tier 3. (4) You may not use this License Exception to export or reexport items that you know will be used to enhance the APP beyond the eligibility limit allowed to your country of destination. (5) License Exception APP does not authorize exports and reexports for nuclear, chemical, biological, or missile end-users and end-uses subject to license requirements under Sec. 744.2, Sec. 744.3, Sec. 744.4, and Sec. 744.5 of the EAR. Such exports and reexports will continue to require a license and will be considered on a case-by-case basis. Reexports and transfers (in country) to these end-users and end- uses in eligible countries are strictly prohibited without prior authorization. (6) Foreign nationals in an expired visa status are not eligible to receive deemed exports of technology or source code under this License Exception. It is the responsibility of the exporter to ensure that, in the case of deemed exports, the foreign national maintains a valid U.S. visa, if required to hold a visa from the United States. (c) Computer Tier 1 destinations. (1) Eligible destinations. The destinations that are eligible to receive exports and reexports under paragraph (c) of this section include: Antigua and Barbuda, Argentina, Aruba, Australia, Austria, Bahamas (The), Bangladesh, Barbados, Belgium, Belize, Benin, Bhutan, Bolivia, Botswana, Brazil, Brunei, Bulgaria, Burkina Faso, Burma, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo (Democratic Republic of the), Congo (Republic of the), Costa Rica, Cote d'Ivoire, Cyprus, Czech Republic, Denmark, Dominica, Dominican Republic, East Timor, Ecuador, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Fiji, Finland, France, Gabon, Gambia (The), Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hong Kong, Hungary, Iceland, Indonesia, Ireland, Italy, Jamaica, Japan, Kenya, Kiribati, Korea (Republic of), Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Marshall Islands, Mauritius, Mexico, Micronesia (Federated States of), Monaco, Mozambique, Namibia, Nauru, Nepal, Netherlands, Netherlands Antilles, New Zealand, Nicaragua, Niger, Nigeria, Norway, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Rwanda, St. Kitts & Nevis, St. Lucia, St. Vincent and the Grenadines, Sao Tome & Principe, Samoa, San Marino, Senegal, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden, Switzerland, Taiwan, Tanzania, Togo, Tonga, Thailand, Trinidad and Tobago, Turkey, Tuvalu, Uganda, United Kingdom, Uruguay, Vatican City, Venezuela, Western Sahara, Zambia, and Zimbabwe. (2) Eligible commodities. All computers, including electronic assemblies and specially designed components therefore are eligible for export or reexport under License Exception APP to Tier 1 destinations, subject to the restrictions in paragraph (b) of this section. (3) Eligible technology and software. (i) Technology and software described in paragraph (a)(2) of this section for computers of unlimited APP are eligible for export or reexport under License Exception APP to: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, or the United Kingdom; and (ii) ``Development'' and ``production'' technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 0.1 Weighted TeraFLOPS (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section. (iii) ``Use'' technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 0.75 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section. (d) Computer Tier 3 destinations. (1) Eligible destinations. Eligible destinations under paragraph (d) of this section are: Afghanistan, Albania, Algeria, Andorra, Angola, Armenia, Azerbaijan, Bahrain, Belarus, Bosnia & Herzegovina, Cambodia, China (People's Republic of), Comoros, Croatia, Djibouti, Egypt, Georgia, India, Iraq, Israel, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Laos, Lebanon, Macau, Macedonia (The Former Yugoslav Republic of), Mauritania, Moldova, Mongolia, Morocco, Oman, Pakistan, Qatar, Russia, Serbia and Montenegro, Saudi Arabia, Tajikistan, Tunisia, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, Vanuatu, Vietnam, and Yemen. (2) Eligible commodities. None. (3) Eligible technology and source code. (i) ``Development,'' and ``production'' technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 0.1 Weighted TeraFLOPS (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations as described in paragraph (d)(1) of this section, subject to the restrictions in paragraph (b) and the provisions of paragraph (d)(4) of this section. (ii) ``Use'' technology and source code described in paragraph (a)(2) of this section for computers with an APP less than or equal to 0.75 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations as described in paragraph (d)(1) of this section, subject to the restrictions in paragraph (b) and the provisions of paragraph (d)(4) of this section. (4) Foreign National Review (FNR) requirement for deemed exports. (i) Submission requirement. Prior to disclosing eligible technology or source code to a foreign national of a Computer Tier 3 country that is not also a country listed in Country Group B in Supplement No. 1 to part 740 of the EAR under this License Exception, you must submit a Foreign National Review [[Page 20885]] (FNR) request to BIS, as required under Sec. 748.8(s) of the EAR. Your FNR request must include information about the foreign national required under Sec. 748.8(t) of the EAR and set forth in Supplement No. 2 of part 748 of the EAR. (ii) Confirmation of eligibility. You may not use License Exception APP, until you have obtained confirmation of eligibility by calling the System for Tracking Export License Applications (STELA), see Sec. 750.5 for how to use STELA, or electronically from the Simplified Network Application Procedure (SNAP), see http://www.bis.doc.gov/SNAP/index.htm for more information about SNAP. (iii) Action by BIS. Within nine business days of the registration of the FNR request, BIS will electronically refer the FNR request for interagency review, or if necessary return the FNR request without action (e.g., if the information provided is incomplete). Processing time starts at the point at which the notification is registered into BIS's electronic system. (iv) Review by other departments or agencies. The Departments of Defense, State, Energy, and other agencies, as appropriate, may review the FNR request. Within 30 calendar days of receipt of the BIS referral, the reviewing agency will provide BIS with a recommendation either to approve or deny the FNR request. A reviewing agency that fails to provide a recommendation within 30 days shall be deemed to have no objection to the final decision of BIS. (v) Action on the FNR Request. After the interagency review period, BIS will promptly notify the applicant regarding the FNR request, i.e., whether the FNR request is approved, denied, or more time is needed to consider the request. (e) Reporting requirements. See Sec. 743.1 of the EAR for reporting requirements of certain items under License Exception APP. 0 5. Section 740.9 is amended by revising the phrase ``Personal computers (including laptops) controlled under ECCN 4A994 that do not exceed a composite theoretical performance of 6,500 millions of theoretical operations per second'' to read ``Personal computers (including laptops) controlled under ECCN 4A994 that do not an exceed Adjusted Peak Performance (APP) of 0.0015 Weighted TeraFLOPS (WT)'' in paragraph (a)(2)(i)(B)(1). 0 6. Section 740.11 is amended by revising paragraphs (a)(4) and (c)(4) to read as follows: Sec. 740.11 Governments, international organizations, and international inspections under the Chemical Weapons Convention (GOV). * * * * * (a) * * * (4) Restrictions. Nationals of countries in Country Group E:1 may not physically or computationally access computers that have been enhanced by ``electronic assemblies'', which have been exported or reexported under License Exception GOV and have been used to enhance such computers by aggregation of processors so that the APP of the aggregation exceeds the APP parameter set forth in ECCN 4A003.b. of the Commerce Control List in Supplement No. 1 to part 774 of the EAR, without prior authorization from the Bureau of Industry and Security. * * * * * (c) * * * (4) Restrictions. Nationals of countries in Country Group E:1 may not physically or computationally access computers that have been enhanced by ``electronic assemblies'', which have been exported or reexported under License Exception GOV and have been used to enhance such computers by aggregation of processors so that the APP of the aggregation exceeds the APP parameter set forth in ECCN 4A003.b. of the Commerce Control List in Supplement No. 1 to part 774 of the EAR, without prior authorization from the Bureau of Industry and Security. * * * * * Sec. 740.19 [Amended] 0 7. Section 740.19 is amended by revising the sentence ``4A994, for items with CTP levels up to12,000 MTOPS; and'' to read ``4A994, for items with an Adjusted Peak Performance (APP) equal to or less than 0.003 Weighted TeraFLOPS; and'' in paragraph (a)(2)(iv). PART 742--[AMENDED] 0 8. The authority citation for part 742 continues to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 18 U.S.C. 2510 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; Sec. 1503, Pub. L. 108-11,117 Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of November 4, 2004, 69 FR 64637 (November 8, 2004); Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). Sec. 742.12 [Removed] 0 9. Section 742.12 is removed and reserved. Sec. 742.19 [Removed] 0 10. Section 742.19 is amended by revising the sentence ``Digital computers with a CTP above 2000.'' to read ``Digital computers with an Adjusted Peak Performance (APP) exceeding 0.0004 Weighted TeraFLOPS (WT).'' in paragraph (b)(1)(xviii). 0 11. Supplement No. 2 is amended by: 0 a. Revising the phrase ``Digital computers with a CTP of 6 or above,'' to read ``Digital computers with an APP of .00001 WT or above,'' in the heading to paragraph (c)(24); 0 b. Revising the phrase ``Computers with a CTP above 2000 MTOPS:'' to read ``Computers with an APP exceeding 0.0004 WT:'' in paragraph (c)(24)(iv)(A); and 0 c. Revising the phrase ``Computers with a CTP at or below 2000 MTOPS:'' to read ``Computers with an APP equal to or less than 0.0004 WT:'' in paragraph (c)(24)(iv)(B). 0 12. Supplement No. 3 is removed and reserved. PART 743--[AMENDED] 0 13. The authority citation for part 743 is revised to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; Pub. L. 106-508; 50 U.S.C. 1701 et seq.; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). 0 14. Section 743.1 is amended by revising the phrase ``License Exceptions GBS, CIV, TSR, LVS, CTP,'' to read ``License Exceptions GBS, CIV, TSR, LVS, APP,'' in paragraph (b)(1). 0 15. Section 743.1 is amended by revising paragraph (c)(2) to read as follows: Sec. 743.1 Wassenaar arrangement. * * * * * (c) * * * (2) Reports for ``software'' controlled by 4D001 (that is specially designed), and ``technology'' controlled by 4E001 (according to the General Technology Note in Supplement No. 2 to part 774 of the EAR) are required for the ``development'' or ``production'' of computers controlled under 4A001.a.2, or for the ``development'' or ``production'' of ``digital computers'' having an ``Adjusted Peak Performance'' (``APP'') exceeding 0.1 Weighted TeraFLOPS (WT). For the calculation of APP, see the Technical Note for Category 4 in the Commerce Control List [[Page 20886]] (Supplement No. 2 to part 774 of the EAR). * * * * * 0 16. Part 743 is amended by adding section 743.2 to read as follows: Sec. 743.2 High Performance Computers: Post Shipment Verification Reporting. (a) Scope. This section outlines special post-shipment reporting requirements for exports of certain computers to destinations in Computer Tier 3, see Sec. 740.7(d) for a list of these destinations. Post-shipment reports must be submitted in accordance with the provisions of this section, and all relevant records of such exports must be kept in accordance with part 762 of the EAR. (b) Requirement. Exporters must file post-shipment reports and keep records in accordance with recordkeeping requirements in part 762 of the EAR for high performance computer exports to destinations in Computer Tier 3, as well as, exports of commodities used to enhance computers previously exported or reexported to Computer Tier 3 destinations, where the ``Adjusted Peak Performance'' (``APP'') is greater than 0.75 Weighted TeraFLOPS (WT). (c) Information that must be included in each post-shipment report. No later than the last day of the month following the month in which the export takes place, the exporter must submit the following information to BIS at the address listed in paragraph (d) of this section: (1) Exporter name, address, and telephone number; (2) License number; (3) Date of export; (4) End-user name, point of contact, address, telephone number; (5) Carrier; (6) Air waybill or bill of lading number; (7) Commodity description, quantities--listed by model numbers, serial numbers, and APP level in WT; and (8) Certification line for exporters to sign and date. The exporter must certify that the information contained in the report is accurate to the best of his or her knowledge. Note to Paragraph (c) of this Section: Exporters are required to provide the PRC End-User Certificate Number to BIS as part of their post-shipment report. When providing the PRC End-User Certificate Number to BIS, you must identify the transaction in the post shipment report to which that PRC End-User Certificate Number applies. (d) Mailing address. A copy of the post-shipment report[s] required under paragraph (b) of this section shall be delivered to one of the following addresses. Note that BIS will not accept reports sent C.O.D. (1) For deliveries by U.S. postal service: U.S. Department of Commerce, Bureau of Industry and Security, P.O. Box 273, Washington, DC 20044, Attn: Office of Enforcement Analysis HPC Team, Room 4065. (2) For courier deliveries: U.S. Department of Commerce, Office of Enforcement Analysis, HPC Team, 14th Street and Constitution Ave., NW., Room 4065, Washington, DC 20230. PART 746--[AMENDED] 0 17. The authority citation for part 746 continues to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 287c; Sec 1503, Pub. L. 108-11,117 Stat. 559; 22 U.S.C. 6004; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; E.O. 12854, 58 FR 36587, 3 CFR 1993 Comp., p. 614; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 13222, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). Sec. 746.3 [Amended] 0 18. Section 746.3 is amended by revising the phrase ``NS, MT, NP, CW, CB, RS, CC, EI, SI, or XP reasons.'' to read ``NS, MT, NP, CW, CB, RS, CC, EI, or SI reasons.'' in paragraph (a)(1). 0 19. Section 746.3 is amended by revising the phrase ``following License Exceptions: CIV, CTP, TMP, RPL, GOV, GFT, TSU, BAG, AVS, ENC or KMI.'' to read ``following License Exceptions: CIV, APP, TMP, RPL, GOV, GFT, TSU, BAG, AVS, ENC or KMI.'' in paragraph (c). PART 748--[AMENDED] 0 20. The authority citation for part 748 continues to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). 0 21. Supplement No. 1 to part 748 is amended by revising paragraph (b) under Block 22 to read as follows: Supplement No. 1 to Part 748--BIS-748P, BIS-748P-A: Item Appendix, and BIS-748P-B: End-User Appendix; Multipurpose Application Instructions * * * * * Block 22: * * * (b) CTP. You must enter the ``Adjusted Peak Performance'' (``APP'') in this Block if your application includes a digital computer or equipment containing a computer as described in Supplement No. 2 to this part. Instructions on calculating the APP are contained in a Technical Note at the end of Category 4 in the CCL. * * * * * 0 22. Supplement No. 2 to part 748 is amended by revising paragraph (c) to read as follows: Supplement No. 2 to Part 748--Unique Application and Submission Requirements * * * * * (c) Computers, telecommunications, information security items, and related equipment. If your license application includes items controlled by both Category 4 and Category 5, your license application must be submitted under Category 5 of the Commerce Control List (Sec. 774.1 of the EAR)--see Category 5 Part 1 Notes 1 and 2 and Part 2 Note 1. License applications including computers controlled by Category 4 must identify an ``Adjusted Peak Performance'' (``APP'') in Block 22(b). If the principal function is telecommunications, an APP is not required. Computers, related equipment, or software performing telecommunication or local area network functions will be evaluated against the telecommunications performance characteristics of Category 5 Part 1, while information security commodities, software and technology will be evaluated against the information security performance characteristics of Category 5 Part 2. If your license application involves items controlled by both Category 4 and Category 5, your license application must be submitted under Category 5--see Category 5 Part 1 Notes 1 and 2 and Part 2 Note 1. License applications involving computers controlled by Category 4 must identify an Adjusted Peak Performance (APP) in Block 22(b). If the principal function is telecommunications, an APP is not required. Computers, related equipment, or software performing telecommunication or local area network functions will be evaluated against the telecommunications performance characteristics of Category 5 Part 1, while information security commodities, software and technology will be evaluated against the information security performance characteristics of Category 5 Part 2. (1) Requirements for license applications that include computers. If you are submitting a license application to export or reexport computers or equipment containing computers to destinations in Country Group D:1 (See [[Page 20887]] Supplement No. 1 to part 740 of the EAR), or to upgrade existing computer installations in those countries, you must also include technical specifications and product brochures to corroborate the data supplied in your license application, in addition to the APP in Block 22(b). (2) Security Safeguard Plan requirement. The United States requires security safeguards for exports, reexports, and in-country transfers of High Performance Computers (HPCs) to ensure that they are used for peaceful purposes. If you are submitting a license application for an export, reexport, or in-country transfer of a high performance computer to or within a destination in Computer Tier 3 (see Sec. 740.7(c)(1) of the EAR) or to Cuba, Iran, Libya, North Korea, Sudan, or Syria you must include with your license application a security safeguard plan signed by the end-user, who may also be the ultimate consignee. This requirement also applies to exports, reexports, and in-country transfers of components or electronic assemblies to upgrade existing ``computer'' installations in those countries. A sample security safeguard plan is posted on BIS's Web page at http://www.bis.doc.gov/hpcs/SecuritySafeguardPlans.html. * * * * * PART 750--[AMENDED] 0 23. The authority citation for part 750 is revised to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; Sec 1503, Pub.L. 108-11,117 Stat. 559; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). Sec. 750.4 [Amended] 0 24. Section 750.4 is amended to remove the phrase ``, except digital computers with a Composite Theoretical performance (CTP) less than 500 MTOPS'' in paragraph (b)(6)(ii)(A). PART 752--[AMENDED] 0 25. The authority citation for part 752 is revised to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp. p. 219; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). 0 26. Supplement No. 2 to part 752 is amended by revising Block 22 paragraph (b) to read as follows: Supplement No. 1 to Part 752--Instructions for Completing Form BIS- 748P-B, ``Item Annex'' * * * * * Block 22: * * * (b) CTP. You must enter the ``Adjusted Peak Performance'' (``APP'') in this block if you intend to export or reexport a computer or equipment that contains a computer. Instructions on calculating the APP are contained in a Technical Note at the end of Category 4 in the CCL. * * * * * PART 762--[AMENDED] 0 27. The authority citation for part 762 is revised to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). 0 28. Section 762.2 is amended by revising (b)(6) to read as follows: Sec. 762.2 Records to Be Retained. * * * * * (b) * * * (6) Sec. 743.2, High Performance Computers * * * * * PART 770--[AMENDED] 0 29. The authority citation for part 770 continues to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). 0 30. Section 770.2 is amended by revising paragraph (l) to read as follows: Sec. 770.2 Item Interpretations. * * * * * (l) Interpretation 12: Computers. (1) Digital computers or computer systems classified under ECCN 4A003.a, .b, or .c, that qualify for ``No License Required'' (NLR) must be evaluated on the basis of Adjusted Peak Performance (APP) alone, to the exclusion of all other technical parameters. Digital computers or computer systems classified under ECCN 4A003.a, .b, or .c that qualify for License Exception APP must be evaluated on the basis of APP, to the exclusion of all other technical parameters, except for ECCN 4A003.e (equipment performing analog-to- digital conversions exceeding the limits in ECCN 3A001.a.5.a). Assemblies performing analog-to-digital conversions are evaluated under Category 3--Electronics, ECCN 3A001.a.5.a. (2) Related equipment classified under ECCN 4A003.e or .g may be exported or reexported under License Exceptions GBS or CIV. When related equipment is exported or reexported as part of a computer system, NLR or License Exception APP is available for the computer system and the related equipment, as appropriate. * * * * * PART 772--[AMENDED] 0 31. The authority citation for part 772 is revised to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). 0 32. Section 772.1 is amended by: 0 a. Adding in alphabetical order the definitions of ``Adjusted Peak Performance (APP)'', and ``APP'', as set forth below; and 0 b. Revising the definition of ``Composite theoretical performance (CTP)'', as set forth below. Sec. 772.1 Definitions of Terms as Used in the Export Administration Regulations (EAR). * * * * * ``APP'' See ``Adjusted Peak Performance.'' This term may also appear without quotation marks. ``Adjusted Peak Performance'' (APP). (Cat 4) An adjusted peak rate at which ``digital computers'' perform 64-bit or larger floating point additions and multiplications. The formula to calculate APP is contained in a technical note at the end of Category 4 of the Commerce Control List. * * * * * ``Composite theoretical performance''. (CTP) (Cat 3)--A measure of computational performance given in millions of theoretical operations per second (MTOPS), calculated using the aggregation of ``computing elements (CE)''. (see Category 3, Technical Note.) This term may also appear without quotation marks. The formula to calculate the CTP is contained in a technical note titled ``Information on How to Calculate ``Composite Theoretical Performance'' at the end of Category 3 of the CCL. * * * * * PART 774--[AMENDED] 0 33. The authority citation for part 774 is revised to read as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C. 287c, 22 U.S.C. 3201 et seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. [[Page 20888]] 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005). 0 34. In Supplement No. 1 to part 774 (the Commerce Control List), Category 3--Electronics, ECCN 3A991 is amended by adding License Requirement notes 1 and 2, to read as follows: 3A991 Electronic devices and components not controlled by 3A001. * * * * * License Requirements Reason for Control: AT ------------------------------------------------------------------------ Control(s) Country chart ------------------------------------------------------------------------ AT applies to entire entry.............. AT Column 1. ------------------------------------------------------------------------ See Sec. Sec. 740.19 and 742.20 of the EAR for additional information on Libya. License Requirements Notes: 1. Microprocessors with a ``Composite Theoretical Performance'' (``CTP'') below 550 MTOPS listed in subparagraphs (a)(2) or (a)(3) of this entry may be shipped NLR (No License Required) when destined to North Korea, provided restrictions set forth in other sections of the EAR (e.g., end-use restrictions), do not apply. See ``Information on How to Calculate ``Composite Theoretical Performance'' (``CTP'')'' at the end of Category 3. 2. See 744.17 of the EAR for additional license requirements for commodities classified as 3A991.a.1. * * * * * 0 35. In Supplement No. 1 to part 774 (the Commerce Control List), Category 3--Electronics, ECCN 3E001 is amended by revising the CIV paragraph of the License Exception section, to read as follows: 3E001 ``Technology'' according to the General Technology Note for the ``development'' or ``production'' of equipment or materials controlled by 3A (except 3A292, 3A980, 3A981, 3A991 or 3A992), 3B (except 3B991 or 3B992) or 3C. * * * * * License Exceptions CIV: Yes for deemed exports, as described in Sec. 734.2(b)(2)(ii) of the EAR, of technology for the development or production of microprocessor microcircuits, micro-computer microcircuits, and microcontroller microcircuits having the characteristics described in 3A001.a.3.c with a ``Composite Theoretical Performance'' (``CTP'') less than or equal to 40,000 MTOPS (regardless of word length or access width). Deemed exports under License Exception CIV are subject to a Foreign National Review (FNR) requirement, see Sec. 740.5 of the EAR for more information about the FNR. License Exception CIV does not apply to ECCN 3E001 technology for 3A001.a.3.c required for the development or production of other items controlled under ECCNs beginning with 3A, 3B, or 3C, or to ECCN 3E001 technology also controlled under ECCN 3E003. TSR: * * * * * * * * 0 36. In Supplement No. 1 to part 774 (the Commerce Control List), Category 3--Electronics, ECCN 3E002 is amended by revising the CIV paragraph of the License Exception section, to read as follows: 3E002 ``Technology'' according to the General Technology Note other than that controlled in 3E001 for the ``development'' or ``production'' of ``microprocessor microcircuits'', ``micro-computer microcircuits'' and microcontroller microcircuits having a ``composite theoretical performance'' (``CTP'') of 530 million theoretical operations per second (MTOPS) or more and an arithmetic logic unit with an access width of 32 bits or more. * * * * * License Exceptions CIV: Yes, for deemed exports, as described in Sec. 734.2(b)(2)(ii) of the EAR, of ``technology'' for the ``development'' or ``production'' of general purpose microprocessors with a ``Composite Theoretical Performance'' (``CTP'') less than or equal to 40,000 MTOPS (regardless of word length or access width). Deemed exports under License Exception CIV are subject to a Foreign National Review (FNR) requirement, see Sec. 740.5 of the EAR for more information about the FNR. License Exception CIV does not apply to ECCN 3E002 technology also required for the development or production of items controlled under ECCNs beginning with 3A, 3B, or 3C, or to ECCN 3E002 technology also controlled under ECCN 3E003. TSR: * * * * * * * * 0 37. In Supplement No. 1 to part 774 (the Commerce Control List), Category 3--Electronics is amended by adding a technical note after EAR99, to read as follows: Category 3--Electronics * * * * * Information on How To Calculate ``Composite Theoretical Performance (``CTP'') Technical Note: Composite Theoretical Performance'' (``CTP'') Abbreviations Used in This Technical Note ``CE'' ``computing element'' (typically an arithmetic logical unit) FP floating point XP fixed point t execution time XOR exclusive OR CPU central processing unit TP theoretical performance (of a single ``CE'') ``CTP'' ``composite theoretical performance'' (multiple ``CEs'') R effective calculating rate WL word length L word length adjustment * multiply Execution time t is expressed in microseconds, TP and ``CTP'' are expressed in millions of theoretical operations per second (MTOPS) and WL is expressed in bits. Outline of ``CTP'' Calculation Method ``CTP'' is a measure of computational performance given in MTOPS. In calculating the ``CTP'' of an aggregation of ``CEs'' the following three steps are required: 1. Calculate the effective calculating rate R for each ``CE'; 2. Apply the word length adjustment (L) to the effective calculating rate (R), resulting in a Theoretical Performance (TP) for each ``CE'; 3. If there is more than one ``CE'', combine the TPs, resulting in a ``CTP'' for the aggregation. Details for these steps are given in the following sections. Note 1: For aggregations of multiple ``CEs'' that have both shared and unshared memory subsystems, the calculation of ``CTP'' is completed hierarchically, in two steps: First, aggregate the groups of ``CEs'' sharing memory; second, calculate the ``CTP'' of the groups using the calculation method for multiple ``CEs'' not sharing memory. Note 2: ``CEs'' that are limited to input/output and peripheral functions (e.g., disk drive, communication and video display controllers) are not aggregated into the ``CTP'' calculation. The following table shows the method of calculating the Effective Calculating Rate R for each ``CE': Step 1: The effective calculating rate R BILLING CODE 3510-33-P [[Page 20889]] [GRAPHIC] [TIFF OMITTED] TR24AP06.020 [[Page 20890]] [GRAPHIC] [TIFF OMITTED] TR24AP06.021 BILLING CODE 3510-33-C Note W: For a pipelined ``CE'' capable of executing up to one arithmetic or logic operation every clock cycle after the pipeline is full, a pipelined rate can be established. The effective calculating rate (R) for such a ``CE'' is the faster of the pipelined rate or non-pipelined execution rate. Note X: For a ``CE'' that performs multiple operations of a specific type in a single cycle (e.g., two additions per cycle or two identical logic operations per cycle), the execution time t is given by: [GRAPHIC] [TIFF OMITTED] TR24AP06.022 ``CEs'' that perform different types of arithmetic or logic operations in a single machine cycle are to be treated as multiple separate ``CEs'' performing simultaneously (e.g., a ``CE'' performing an addition and a multiplication in one cycle is to be treated as two ``CEs'', the first performing an addition in one cycle and the second performing a multiplication in one cycle). If a single ``CE'' has both scalar function and vector function, use the shorter execution time value. Note Y: For the ``CE'' that does not implement FP add or FP multiply, but that performs FP divide: [GRAPHIC] [TIFF OMITTED] TR24AP06.023 If the ``CE'' implements FP reciprocal but not FP add, FP multiply or FP divide, then [GRAPHIC] [TIFF OMITTED] TR24AP06.024 If none of the specified instructions is implemented, the effective FP rate is 0. Note Z: In simple logic operations, a single instruction performs a single logic manipulation of no more than two operands of given lengths. In complex logic operations, a single instruction performs multiple logic manipulations to produce one or more results from two or more operands. Rates should be calculated for all supported operand lengths considering both pipelined operations (if supported), and non-pipelined operations using the fastest executing instruction for each operand length based on: 1. Pipelined or register-to-register operations. Exclude extraordinarily short execution times generated for operations on a predetermined operand or operands (for example, multiplication by 0 or 1). If no register-to-register operations are implemented, continue with (2). 2. The faster of register-to-memory or memory-to-register operations; if these also do not exist, then continue with (3). 3. Memory-to-memory. In each case above, use the shortest execution time certified by the manufacturer. Step 2: TP for each supported operand length WL Adjust the effective rate R (or R') by the word length adjustment L as follows: TP = R * L, where L = (1/3 + WL/96) Note: The word length WL used in these calculations is the operand length in bits. (If an operation uses operands of different lengths, select the largest word length.) The combination of a mantissa ALU and an [[Page 20891]] exponent ALU of a floating point processor or unit is considered to be one ``CE'' with a Word Length (WL) equal to the number of bits in the data representation (typically 32 or 64) for purposes of the ``CTP'' calculation. This adjustment is not applied to specialized logic processors that do not use XOR instructions. In this case TP = R. Select the maximum resulting value of TP for: Each XP-only ``CE'' (Rxp); Each FP-only ``CE'' (Rfp); Each combined FP and XP ``CE'' (R); Each simple logic processor not implementing any of the specified arithmetic operations; and Each special logic processor not using any of the specified arithmetic or logic operations. Step 3: ``CTP'' for aggregations of ``CEs'', including CPUs. For a CPU with a single ``CE'', ``CTP'' = TP (for ``CEs'' performing both fixed and floating point operations TP = max (TPfp, TPxp)) ``CTP'' for aggregations of multiple ``CEs'' operating simultaneously is calculated as follows: Note 1: For aggregations that do not allow all of the ``CEs'' to run simultaneously, the possible combination of ``CEs'' that provides the largest ``CTP'' should be used. The TP of each contributing ``CE'' is to be calculated at its maximum value theoretically possible before the ``CTP'' of the combination is derived. N.B.: To determine the possible combinations of simultaneously operating ``CEs'', generate an instruction sequence that initiates operations in multiple ``CEs'', beginning with the slowest ``CE'' (the one needing the largest number of cycles to complete its operation) and ending with the fastest ``CE''. At each cycle of the sequence, the combination of ``CEs'' that are in operation during that cycle is a possible combination. The instruction sequence must take into account all hardware and/or architectural constraints on overlapping operations. Note 2: A single integrated circuit chip or board assembly may contain multiple ``CEs''. Note 3: [RESERVED] Note 4: [RESERVED] Note 5: ``CTP'' values must be aggregated for multiple ``CEs'' specially designed to enhance performance by aggregation, operating simultaneously and sharing memory--or multiple memory/''CE''-- combinations operating simultaneously utilizing specially designed hardware. ``CTP'' = TP1 + C2 * TP2 + . . . + Cn \*\ TPn, Where the TPs are ordered by value, with TP1 being the highest, TP2 being the second highest, . . . and TPn being the lowest. Ci is a coefficient determined by the strength of the interconnection between ``CEs'', as follows: For multiple ``CEs'' operating simultaneously and sharing memory: C2 = C3 = C4 = . . . = Cn = 0.75 Note 1: When the ``CTP'' calculated by the above method does not exceed 194 MTOPS, the following formula may be used to calculate Ci: [GRAPHIC] [TIFF OMITTED] TR24AP06.025 Where m = the number of ``CEs'' or groups of ``CEs'' sharing access. Provided: 1. The TP1 of each ``CE'' or group of ``CEs'' does not exceed 30 MTOPS; 2. The ``CEs'' or groups of ``CEs'' share access to main memory (excluding cache memory) over a single channel; and 3. Only one ``CE'' or group of ``CEs'' can have use of the channel at any given time. N.B.: This does not apply to items controlled under Category 3. Note 2: ``CEs'' share memory if they access a common segment of solid state memory. This memory may include cache memory, main memory or other internal memory. Peripheral memory devices such as disk drives, tape drives or RAM disks are not included. For Multiple ``CEs'' or groups of ``CEs'' not sharing memory, interconnected by one or more data channels: Ci = 0.75 \*\ ki (i = 2, . . . , 32) (see Note below) = 0.60 \*\ ki (i = 33, . . . , 64) = 0.45 \*\ ki (i = 65, . . . , 256) = 0.30 \*\ ki (i > 256) The value of Ci is based on the number of ``CE''s, not the number of nodes. Where ki = min (Si/Kr, 1), and Kr = normalizing factor of 20 MByte/s. Si = sum of the maximum data rates (in units of MByte/s) for all data channels connected to the i\th\ ``CE'' or group of ``CEs'' sharing memory. When calculating a Ci for a group of ``CEs'', the number of the first ``CE'' in a group determines the proper limit for Ci. For example, in an aggregation of groups consisting of 3 ``CEs'' each, the 22nd group will contain ``CE''64, ``CE''65 and ``CE''66. The proper limit for Ci for this group is 0.60. Aggregation (of ``CEs'' or groups of ``CEs'') should be from the fastest-to-slowest; i.e.: TP1 >= TP2 >= .... > TPn, and in the case of TPi = TPi + 1, from the largest to smallest; i.e.: Ci >= Ci + 1 Note: The ki factor is not to be applied to ``CEs'' 2 to 12 if the TPi of the ``CE'' or group of ``CEs'' is more than 50 MTOPS; i.e., Ci for ``CEs'' 2 to 12 is 0.75. 0 38. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4--Computers, Export Control Classification Number (ECCN) 4A001 is amended by revising the License Requirements section, to read as follows: 4A001 Electronic computers and related equipment, and ``electronic assemblies'' and specially designed components therefor. License Requirements Reason for Control: NS, MT, AT, NP. ------------------------------------------------------------------------ Control(s) Country chart ------------------------------------------------------------------------ NS applies to entire entry.............. NS Column 2. MT applies to items in 4A001.a when the MT Column 1. parameters in 4A101 are met or exceeded. AT applies to entire entry.............. AT Column 1. ------------------------------------------------------------------------ NP applies, unless a License Exception is available. See Sec. 742.3(b) of the EAR for information on applicable licensing review policies. License Requirement Notes: See Sec. 743.1 of the EAR for reporting requirements for exports under License Exceptions for 4A001.a.2. * * * * * 0 39. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4--Computers, Export Control [[Page 20892]] Classification Number (ECCN) 4A003 is amended by revising the License Requirements section, the License Exceptions section, and the ``items'' paragraph in the List of Items Controlled section, to read as follows: 4A003 ``Digital computers'', ``electronic assemblies'', and related equipment therefor, as follows, and specially designed components therefor. License Requirements Reason for Control: NS, CC, AT, NP. ------------------------------------------------------------------------ Control(s) Country chart ------------------------------------------------------------------------ NS applies to 4A003.b and .c............ NS Column 1. NS applies to 4A003.a, .e, and .g....... NS Column 2. CC applies to ``digital computers'' for CC Column 1. computerized finger-print equipment. AT applies to entire entry (refer to AT Column 1. 4A994 for controls on ``digital computers'' with a APP >= 0.00001 but <= to 0.75 WT). ------------------------------------------------------------------------ NP applies, unless a License Exception is available. See Sec. 742.3(b) of the EAR for information on applicable licensing review policies. Note 1: For all destinations, except those countries in Country Group E:1 of Supplement No. 1 to part 740 of the EAR, no license is required (NLR) for computers with an ``Adjusted Peak Performance'' (``APP'') not exceeding 0.75 Weighted TeraFLOPS (WT) and for ``electronic assemblies'' described in 4A003.c that are not capable of exceeding an ``Adjusted Peak Performance'' (``APP'') exceeding 0.75 Weighted TeraFLOPS (WT) in aggregation, except certain transfers as set forth in Sec. 746.3 (Iraq). Computers controlled in this entry for MT reasons are not eligible for NLR. Note 2: Special Post Shipment Verification reporting and recordkeeping requirements for exports of computers to destinations in Computer Tier 3 may be found in Sec. 743.2 of the EAR. License Exceptions LVS: * * * GBS: * * * APP: Yes, for computers controlled by 4A003.a or .b, and ``electronic assemblies'' controlled by 4A003.c, to the exclusion of other technical parameters, with the exception of 4A003.e (equipment performing analog-to-digital conversions exceeding the limits of 3A001.a.5.a). See Sec. 740.7 of the EAR. CIV: * * * List of Items Controlled Unit: * * * Related Controls: * * * Related Definitions: * * * Items: Note 1: 4A003 includes the following: a. Vector processors; b. Array processors; c. Digital signal processors; d. Logic processors; e. Equipment designed for ``image enhancement''; f. Equipment designed for ``signal processing''. Note 2: The control status of the ``digital computers'' and related equipment described in 4A003 is determined by the control status of other equipment or systems provided: a. The ``digital computers'' or related equipment are essential for the operation of the other equipment or systems; b. The ``digital computers'' or related equipment are not a ``principal element'' of the other equipment or systems; and N.B. 1: The control status of ``signal processing'' or ``image enhancement'' equipment specially designed for other equipment with functions limited to those required for the other equipment is determined by the control status of the other equipment even if it exceeds the ``principal element'' criterion. N.B. 2: For the control status of ``digital computers'' or related equipment for telecommunications equipment, see Category 5, Part 1 (Telecommunications). c. The ``technology'' for the ``digital computers'' and related equipment is determined by 4E. a. Designed or modified for ``fault tolerance''; Note: For the purposes of 4A003.a., ``digital computers'' and related equipment are not considered to be designed or modified for ``fault tolerance'' if they utilize any of the following: 1. Error detection or correction algorithms in ``main storage'; 2. The interconnection of two ``digital computers'' so that, if the active central processing unit fails, an idling but mirroring central processing unit can continue the system's functioning; 3. The interconnection of two central processing units by data channels or by use of shared storage to permit one central processing unit to perform other work until the second central processing unit fails, at which time the first central processing unit takes over in order to continue the system's functioning; or 4. The synchronization of two central processing units by ``software'' so that one central processing unit recognizes when the other central processing unit fails and recovers tasks from the failing unit. b. ``Digital computers'' having an ``Adjusted Peak Performance'' (``APP'') exceeding 0.75 weighted TeraFLOPS (WT); c. ``Electronic assemblies'' specially designed or modified to be capable of enhancing performance by aggregation of processors so that the ``APP'' of the aggregation exceeds the limit in 4A003.b.; Note 1: 4A003.c applies only to ``electronic assemblies'' and programmable interconnections not exceeding the limit in 4A003.b. when shipped as unintegrated ``electronic assemblies''. It does not apply to ``electronic assemblies'' inherently limited by nature of their design for use as related equipment controlled by 4A003.e. Note 2: 4A003.c does not control ``electronic assemblies'' specially designed for a product or family of products whose maximum configuration does not exceed the limit of 4A003.b. d. [RESERVED] e. Equipment performing analog-to-digital conversions exceeding the limits in 3A001.a.5; f. [RESERVED] g. Equipment specially designed to provide external interconnection of ``digital computers'' or associated equipment that allows communications at data rates exceeding 1.25 Gbyte/s. Note: 4A003.g does not control internal interconnection equipment (e.g., backplanes, buses) passive interconnection equipment, ``network access controllers'' or ``communication channel controllers'. 0 40. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4--Computers, Export Control Classification Number (ECCN) 4A994 is amended by revising the ``items'' paragraph in the List of Items Controlled section, to read as follows: 4A994 Computers, ``electronic assemblies'', and related equipment not controlled by 4A001 or 4A003, and specially designed components therefor * * * * * List of Items Controlled Unit: * * * Related Controls: * * * Related Definitions: * * * Items: Note 1: The control status of the ``digital computers'' and related equipment described in 4A994 is determined by the control status of other equipment or systems provided: a. The ``digital computers'' or related equipment are essential for the operation of the other equipment or systems; b. The ``digital computers'' or related equipment are not a ``principal element'' of the other equipment or systems; and N.B. 1: The control status of ``signal processing'' or ``image enhancement'' equipment specially designed for other equipment with functions limited to those required for the other equipment is determined by the control status of the other equipment even if it exceeds the ``principal element'' criterion. N.B. 2: For the control status of ``digital computers'' or related equipment for [[Page 20893]] telecommunications equipment, see Category 5, Part 1 (Telecommunications). c. The ``technology'' for the ``digital computers'' and related equipment is determined by 4E. a. Electronic computers and related equipment, and ``electronic assemblies'' and specially designed components therefor, rated for operation at an ambient temperature above 343 K (70[deg] C); b. ``Digital computers'' having an ``Adjusted Peak Performance'' (``APP'') equal to or greater than 0.00001 Weighted TeraFLOPS (WT); c. ``Electronic assemblies'' that are specially designed or modified to enhance performance by aggregation of processors, as follows: c.1. Designed to be capable of aggregation in configurations of 16 or more processors; or c.2. Having a sum of maximum data rates on all channels available for connection to associated processors exceeding 40 million Byte/s; Note 1: 4A994.c applies only to ``electronic assemblies'' and programmable interconnections with a ``APP'' not exceeding the limits in 4A994.b, when shipped as unintegrated ``electronic assemblies''. It does not apply to ``electronic assemblies'' inherently limited by nature of their design for use as related equipment controlled by 4A994.g and 4A994.k. Note 2: 4A994.c does not control any ``electronic assembly'' specially designed for a product or family of products whose maximum configuration does not exceed the limits of 4A994.b. d. Disk drives and solid state storage equipment: d.1. Magnetic, erasable optical or magneto-optical disk drives with a ``maximum bit transfer rate'' exceeding 25 million bit/s; d.2. Solid state storage equipment, other than ``main storage'' (also known as solid state disks or RAM disks), with a ``maximum bit transfer rate'' exceeding 36 million bit/s; e. Input/output control units designed for use with equipment controlled by 4A994.d; f. Equipment for ``signal processing'' or ``image enhancement'' having an ``Adjusted Peak Performance'' (``APP'') equal to or greater than 0.00001 Weighted TeraFLOPS (WT); g. Graphics accelerators or graphics coprocessors that exceed a ``three dimensional vector rate'' of 400,000 or, if supported by 2-D vectors only, a ``two dimensional vector rate'' of 600,000; Note: The provisions of 4A994.g do not apply to work stations designed for and limited to: a. Graphic arts (e.g., printing, publishing); and b. The display of two-dimensional vectors. h. Color displays or monitors having more than 120 resolvable elements per cm in the direction of the maximum pixel density; Note 1: 4A994.h does not control displays or monitors not specially designed for electronic computers. Note 2: Displays specially designed for air traffic control (ATC) systems are treated as specially designed components for ATC systems under Category 6. i. Equipment containing ``terminal interface equipment'' exceeding the limits in 5A991. Note: For the purposes of 4A994.i, ``terminal interface equipment'' includes ``local area network'' interfaces, modems and other communications interfaces. ``Local area network'' interfaces are evaluated as ``network access controllers''. j. Equipment specially designed to provide external interconnection of ``digital computers'' or associated equipment that allows communications at data rates exceeding 80 Mbyte/s. Note: 4A994.j does not control internal interconnection equipment (e.g., backplanes, buses) passive interconnection equipment, ``network access controllers'' or ``communication channel controllers''. k. ``Hybrid computers'' and ``electronic assemblies'' and specially designed components therefor, as follows: k.1. Containing ``digital computers'' controlled by 4A003; k.2. Containing analog-to-digital converters having all of the following characteristics: k.2.a. 32 channels or more; and k.2.b. A resolution of 14 bit (plus sign bit) or more with a conversion rate of 200,000 conversions/s or more. 0 41. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4--Computers, Export Control Classification Number (ECCN) 4D001 is amended by revising the License Requirements section, the License Exceptions section, and the ``items'' paragraph in the List of Items Controlled section, to read as follows: 4D001 ``Software'' specially designed or modified for the ``development'', ``production'' or ``use'' of equipment or ``software'' controlled by 4A001 to 4A004, or 4D (except 4D980, 4D993 or 4D994), and other specified software, see List of Items Controlled. License Requirements Reason for Control: NS, CC, AT, NP. ------------------------------------------------------------------------ Control(s) Country chart ------------------------------------------------------------------------ NS applies to ``software'' for NS Column 1. commodities or software controlled by 4A001 to 4A004, 4D001 to 4D003. CC applies to ``software'' for CC Column 1. computerized finger-print equipment controlled by 4A003 for CC reasons. AT applies to entire entry.............. AT Column 1. ------------------------------------------------------------------------ NP applies, unless a License Exception is available. See Sec. 742.3(b) of the EAR for information on applicable licensing review policies. License Exceptions CIV: N/A. TSR: Yes, except ``software'' for commodities controlled by ECCN 4A003.b or ECCN 4A003.c is limited to ``software'' for computers or ``electronic assemblies'' with an ``Adjusted Peak Performance'' (``APP'') equal to or less than 0.1 Weighted TeraFLOPS (WT). APP: Yes to specific countries (see Sec. 740.7 of the EAR for eligibility criteria) List of Items Controlled Unit: * * * Related Controls: * * * Related Definitions: * * * Items: a. ``Software'' specially designed or modified for the ``development'', ``production'' or ``use'' of equipment or ``software'' controlled by 4A001 to 4A004, or 4D (except 4D980, 4D993 or 4D994). b. ``Software'', other than that controlled by 4D001.a, specially designed or modified for the ``development'' or ``production'' of: b.1. ``Digital computers'' having an ``Adjusted Peak Performance'' (``APP'') exceeding 0.04 Weighted TeraFLOPS (WT); or b.2. ``Electronic assemblies'' specially designed or modified for enhancing performance by aggregation of processors so that the ``APP'' of the aggregation exceeds the limit in 4D001.b.1. 0 42. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4--Computers, Export Control Classification Number (ECCN) 4D002 is amended by revising the License Requirements section, to read as follows: 4D002 ``Software'' specially designed or modified to support ``technology'' controlled by 4E (except 4E980, 4E992, and 4E993). License Requirements Reason for Control: NS, AT, NP. [[Page 20894]] ------------------------------------------------------------------------ Control(s) Country chart ------------------------------------------------------------------------ NS applies to entire entry.............. NS Column 1. AT applies to entire entry.............. AT Column 1. ------------------------------------------------------------------------ NP applies, unless a License Exception is available. See Sec. 742.3(b) of the EAR for information on applicable licensing review policies. * * * * * 0 43. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4--Computers, Export Control Classification Number (ECCN) 4E001 is amended by revising the License Requirements section, the License Exceptions section, and the ``items'' paragraph in the List of Items Controlled section, to read as follows: 4E001 ``Technology'' according to the General Technology Note, for the ``development'', ``production'' or ``use'' of equipment or ``software'' controlled by 4A (except 4A980, 4A993 or 4A994) or 4D (except 4D980, 4D993, 4D994), and other specified technology, see List of Items Controlled. License Requirements Reason for Control: NS, MT, CC, AT, NP. ------------------------------------------------------------------------ Control(s) Country chart ------------------------------------------------------------------------ NS applies to ``technology'' for NS Column 1. commodities or software controlled by 4A001 to 4A004, 4D001 to 4D003. MT applies to ``technology'' for items MT Column 1. controlled by 4A001.a and 4A101 for MT reasons. CC applies to ``technology'' for CC Column 1. computerized fingerprint equipment controlled by 4A003 for CC reasons. AT applies to entire entry.............. AT Column 1. ------------------------------------------------------------------------ NP applies, unless a License Exception is available. See Sec. 742.3(b) of the EAR for information on applicable licensing review policies. License Requirement Notes: See Sec. 743.1 of the EAR for reporting requirements for exports under License Exceptions. License Exceptions CIV: N/A TSR: Yes, except technology for commodities controlled by ECCN 4A003.b or ECCN 4A003.c is limited to technology for computers or electronic assemblies with an ``Adjusted Peak Performance'' (``APP'') exceeding 0.1 Weighted TeraFLOPS (WT). APP: Yes to specific countries (see Sec. 740.7 of the EAR for eligibility criteria). List of Items Controlled Unit: * * * Related Controls: * * * Related Definitions: * * * Items: a. ``Technology'' according to the General Technology Note, for the ``development,'' ``production,'' or ``use'' of equipment or ``software'' controlled by 4A (except 4A980, 4A993 or 4A994) or 4D (except 4D980, 4D993, 4D994). b. ``Technology'', other than that controlled by 4E001.a, specially designed or modified for the ``development'' or ``production'' of: b.1. ``Digital computers'' having an ``Adjusted Peak Performance'' (``APP'') exceeding 0.04 Weighted TeraFLOPS (WT); or b.2. ``Electronic assemblies'' specially designed or modified for enhancing performance by aggregation of processors so that the ``APP'' of the aggregation exceeds the limit in 4D001.b.1. 0 44. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4--Computers is amended by: 0 (a) Removing the Technical Note ``Information on How to Calculate ``Composite Theoretical Performance (``CTP'')'' that appears after EAR99; and 0 (b) Adding a Technical Note on ``Adjusted Peak Performance (APP)'' after EAR99, to read as follows: Technical Note on ``Adjusted Peak Performance'' (``APP'') APP is an adjusted peak rate at which ``digital computers'' perform 64-bit or larger floating point additions and multiplications. Abbreviations Used in This Technical Note n number of processors in the ``digital computer'' i processor number (i,....n) ti processor cycle time (ti = 1/Fi) Fi processor frequency Ri peak floating point calculating rate Wi architecture adjustment factor APP is expressed in Weighted TeraFLOPS (WT), in units of 1012 adjusted floating point operations per second, Outline of ``APP'' Calculation Method 1. For each processor i, determine the peak number of 64-bit or larger floating-point operations, FPOi, performed per cycle for each processor in the ``digital computer''. Note: In determining FPO, include only 64-bit or larger floating point additions and/or multiplications. All floating point operations must be expressed in operations per processor cycle; operations requiring multiple cycles may be expressed in fractional results per cycle. For processors not capable of performing calculations on floating-point operands of 64-bits or more the effective calculating rate R is zero. 2. Calculate the floating point rate R for each processor Ri = FPOi/ti. 3. Calculate APP as APP = W1 x R1 + W2 x R2 + ... + Wn x Rn. 4. For ``vector processors'', Wi = 0.9. For non-``vector processors'', Wi = 0.3. Note 1: For processors that perform compound operations in a cycle, such as an addition and multiplication, each operation is counted. Note 2: For a pipelined processor the effective calculating rate R is the faster of the pipelined rate, once the pipeline is full, or the non-pipelined rate. Note 3: The calculating rate R of each contributing processor is to be calculated at its maximum value theoretically possible before the ``APP'' of the combination is derived. Simultaneous operations are assumed to exist when the computer manufacturer claims concurrent, parallel, or simultaneous operation or execution in a manual or brochure for the computer. Note 4: Do not include processors that are limited to input/ output and peripheral functions (e.g., disk drive, communication and video display) when calculating APP. Note 5: APP values are not to be calculated for processor combinations (inter)connected by ``Local Area Networks'', Wide Area Networks, I/O shared connections/devices, I/O controllers and any communication interconnection implemented by ``software''. Note 6: APP values must be calculated for (1) processor combinations containing processors specially designed to enhance performance by aggregation, operating simultaneously and sharing memory; or (2) multiple memory/processor combinations operating simultaneously utilizing specially designed hardware. Note 7: A ``vector processor'' is defined as a processor with built-in instructions that perform multiple calculations on floating-point vectors (one-dimensional arrays of 64-bit or larger numbers) simultaneously, having at least 2 vector functional units and at least 8 vector registers of at least 64 elements each. Dated: April 12, 2006. Matthew S. Borman, Deputy Assistant Secretary for Export Administration. [FR Doc. 06-3647 Filed 4-21-06; 8:45 am] BILLING CODE 3510-33-P

usgpo

2024-10-08T14:08:33.248050

FR

FR-2006-04-24/06-3855

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Pages 20895-20900] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3855] [[Page 20895]] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-R01-OAR-2006-0119; A-1-FRL-8049-9] Approval of the Clean Air Act, Section 112(l), Authority for Hazardous Air Pollutants: Perchloroethylene Dry Cleaner Regulation Maine Department of Environmental Protection AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: Pursuant to section 112(l) of the Clean Air Act (``CAA''), the Maine Department of Environmental Protection (``ME DEP'') submitted a request for approval to implement and enforce ``Chapter 125: Perchloroethylene Dry Cleaner Regulation'' in place of the National Emissions Standard for Hazardous Air Pollutants for Perchloroethylene Dry Cleaning Facilities (``Dry Cleaning NESHAP'') as it applies to area sources. EPA has reviewed this request and determined that it satisfies the requirements necessary for approval. Thus, EPA is hereby granting ME DEP the authority to implement and enforce its perchloroethylene dry cleaner regulation in place of the Dry Cleaning NESHAP for area sources. This approval makes the ME DEP rule federally enforceable. Major sources remain subject to the Federal Dry Cleaning NESHAP. DATES: This action will be effective June 23, 2006, unless EPA receives relevant adverse comments by May 24, 2006. If EPA receives such comments, then it will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of June 23, 2006. ADDRESSES: Submit your comments, identified by Docket ID Number EPA- R01-OAR-2006-0119 by one of the following methods: 1. http://www.regulations.gov: Follow the on-line instructions for submitting comments. 2. E-mail: [email protected]. 3. Fax: (617) 918-0048. 4. Mail: ``Docket Identification Number EPA-R01-OAR-2006-0119'', Dan Brown, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAP), Boston, MA 02114-2023. 5. Hand Delivery or Courier. Deliver your comments to: Dan Brown, Manager, Air Permits, Toxics and Indoor Programs Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAP), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding legal holidays. Instructions: Direct your comments to Docket ID No. EPA-R01-OAR- 2006-0119. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov, or e-mail, information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an ``anonymous access'' systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding legal holidays. FOR FURTHER INFORMATION CONTACT: Susan Lancey, Air Permits, Toxics and Indoor Programs Unit (CAP), U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA 02114, telephone number (617) 918-1656, fax number (617) 918-0656, e-mail [email protected]. SUPPLEMENTARY INFORMATION: I. General Information A. How Can I Get Copies of This Document and Other Related Information? In addition to the publicly available docket materials available for inspection electronically in Regional Material in EDocket, and the hard copy available at the Regional Office, which are identified in the ADDRESSES section of this Federal Register, copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Bureau of Air Quality Control, Department of Environmental Protection, First Floor of the Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017. II. Rulemaking Information Organization of this document. The following outline is provided to aid in locating information in this preamble. A. Background and Purpose B. What Requirements Must a State Rule Meet To Substitute for a Section 112 Rule? C. EPA Determination of Rule Equivalency 1. What Are the Major Differences Between Chapter 125 and the Dry Cleaning NESHAP? a. How Do the Applicability Requirements Differ? b. How Do the Requirements for Transfer Machines Differ? c. How Do the Requirements for Refrigerated Condensers Differ? d. How Do the Work Practice Standards Differ? e. How Do the Testing and Monitoring Requirements Differ? f. How Do the Reporting Requirements Differ? g. What Are the Title V Permit Requirements for Area Sources? [[Page 20896]] h. How Does Maine's Regulation Address the General Provisions at 40 CFR Part 63, Subpart A? 2. What Is EPA's Action Regarding Chapter 125? 3. How Do Amendments to the Dry Cleaning NESHAP Affect This Rulemaking? III. Summary of EPA's Action IV. Statutory and Executive Order Reviews A. Executive Orders 12866 and 13045 B. Executive Order 13211 C. Executive Order 13175 D. Executive Order 13132 E. Regulatory Flexibility Act F. Unfunded Mandates G. Submission to Congress and the Comptroller General H. National Technology Transfer and Advancement Act I. Petitions for Judicial Review A. Background and Purpose Under CAA section 112(l), EPA may approve State or local rules or programs to be implemented and enforced in place of certain otherwise applicable Federal rules, emissions standards, or requirements. The Federal regulations governing EPA's approval of State and local rules or programs under section 112(l) are located at 40 CFR part 63, subpart E. See 58 FR 62262 (November 26, 1993), as amended by 65 FR 55810 (September 14, 2000). Under these regulations, a State air pollution control agency has the option to request EPA's approval to substitute a State rule for the applicable Federal rule (e.g., the National Emission Standards for Hazardous Air Pollutants (NESHAP)). Upon approval by EPA, the State agency is authorized to implement and enforce its rule in place of the Federal rule. EPA promulgated the Dry Cleaning NESHAP on September 22, 1993. See 58 FR 49354 (codified at 40 CFR part 63, subpart M, ``National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities''). On August 12, 2003, EPA received ME DEP's request to implement and enforce ``Chapter 125: Perchloroethylene Dry Cleaner Regulation'' in lieu of the Dry Cleaning NESHAP as applied to area sources. ME DEP's request for approval was submitted pursuant to the provisions of 40 CFR part 63, subpart E. On September 15, 2003, EPA determined that Maine's submittal was complete. Maine adopted Chapter 125 in 1991 to regulate dry cleaning facilities that are area sources of perchloroethylene in the State of Maine. See Maine Chapter 125 of the Department of Environmental Protection Regulations. Chapter 125 was revised in 1997 and 2003 to coincide more closely with the Dry Cleaning NESHAP and to remove sections referring to obsolete practices and equipment. Chapter 125 requires area source dry cleaning facilities to register with the State and to comply with control technology, leak detection and strict work practice standards to reduce perchloroethylene emissions from their operations. Chapter 125 contains certain requirements that differ from the Dry Cleaning NESHAP. As explained below, however, EPA has determined that Chapter 125 is no less stringent than the Dry Cleaning NESHAP as applied to area sources. A copy of Chapter 125 is available upon request or for public inspection at EPA's New England Regional Office at the address listed above. B. What Requirements Must a State Rule Meet To Substitute for a Section 112 Rule? Section 112(l)(5) of the CAA requires that a State's NESHAP program contain adequate authorities to assure compliance with each applicable Federal requirement, adequate resources for implementation, and an expeditious compliance schedule. These are also requirements for an adequate operating permits program under 40 CFR part 70. On October 18, 2001, EPA promulgated full approval of ME DEP's operating permits program. See 66 FR 52874. Under 40 CFR 63.91(d)(3), interim or final title V program approval satisfies the criteria set forth in Sec. 63.91(d) for ``up-front approval.'' Accordingly, ME DEP has satisfied the up-front approval criteria of 40 CFR 63.91(d). Additionally, the ``rule substitution'' option requires EPA to ``make a detailed and thorough evaluation of the State's submittal to ensure that it meets the stringency and other requirements'' of 40 CFR 63.93. 58 FR at 62274. A rule will be approved if EPA finds: (1) The State and local rules are ``no less stringent'' than the corresponding Federal regulations, (2) the State and local government has adequate authorities to implement and enforce the rules, and (3) the schedule for implementation and compliance is ``no less stringent'' than the deadlines established in the otherwise applicable Federal rule. 40 CFR 63.93(b). After reviewing ME DEP's partial rule substitution request and equivalency demonstration for the Dry Cleaning NESHAP as it applies to area sources, EPA has determined this request meets all the requirements necessary for approval under CAA section 112(l) and 40 CFR 63.91 and 63.93. C. EPA Determination of Rule Equivalency 1. What Are the Major Differences Between Chapter 125 and the Dry Cleaning NESHAP? a. How Do the Applicability Requirements Differ? The Dry Cleaning NESHAP classifies dry cleaning sources as major sources based on either annual perchloroethylene (perc) emissions or annual perc consumption. Major sources are those sources that: (1) Emit or have the potential to emit more than 10 tons per year of perc to the atmosphere, or (2) consume greater than 8000 liters (2100 gallons) of perc for dry-to-dry machines or greater than 6800 liters (1800 gallons) of perc for transfer machines or transfer and dry-to-dry machines. 40 CFR 63.320(g). The Dry Cleaning NESHAP exempts certain area sources from specified requirements based on perc consumption levels and the types of dry cleaning machines used at the source. For example, an existing area source consisting of only dry-to-dry machines is exempt from specified operating standards and testing, monitoring, reporting and recordkeeping requirements of the Dry Cleaning NESHAP if the facility's total perc consumption is less than 140 gallons per year. 40 CFR 63.320(d). Similarly, an existing area source consisting of only transfer machine systems is exempt from these same requirements if the facility's total perc consumption is less than 200 gallons per year. 40 CFR 63.320(e). In addition, the Dry Cleaning NESHAP exempts all coin- operated machines from the requirements of the rule. 40 CFR 63.320(j). Chapter 125 of the Maine Department of Environmental Protection regulations requires all area source dry cleaners to comply with the requirements of the rule, regardless of their perc consumption levels. Chapter 125, section 1. According to Maine's 2001 annual emissions inventory data, about 70% of dry cleaners in Maine use less than 140 gallons of perc per year. Under the Federal rule, these area source dry cleaners would be exempt from numerous operating standards and testing, monitoring, reporting and recordkeeping requirements of the Dry Cleaning NESHAP. Under Chapter 125, however, these smaller area sources are subject to the same standards that apply to larger area sources. As such, Chapter 125 imposes perc emission control requirements on a significantly larger number of area sources than does the Dry Cleaning NESHAP. In addition, [[Page 20897]] Chapter 125 contains no exemption for coin-operated machines. These applicability provisions are more stringent than the applicability provisions of the Dry Cleaning NESHAP. b. How Do the Requirements for Transfer Machines Differ? A transfer machine system is a multiple-machine dry cleaning operation in which washing and drying are performed in different machines. The Dry Cleaning NESHAP requires owners and operators of new transfer machine systems to eliminate any emissions of perc from clothing transfer between the washer and the dryer of transfer machine systems. 40 CFR 63.322(b)(2). In addition, the Dry Cleaning NESHAP allows for existing transfer machine systems and sets certain control standards and other requirements for existing transfer machine systems. See, e.g., 40 CFR 63.322(a). Clothing transfer emissions are a significant portion of the overall emissions from transfer machine systems. Chapter 125 prohibits the use and installation of all transfer machines. Chapter 125, section 3.B(4). As such, Chapter 125 is more stringent than the Dry Cleaning NESHAP. c. How Do the Requirements for Refrigerated Condensers Differ? The Dry Cleaning NESHAP prohibits any source that has a refrigerated condenser on a dry-to-dry machine, dryer, or reclaimer from using the same refrigerated condenser coil for the washer that is used by a dry-to-dry machine, dryer, or reclaimer. 40 CFR 63.322(f). Only transfer machine systems have separate dry-to-dry machine, dryer, or reclaimer systems. Because Chapter 125 prohibits the use or installation of transfer machines at dry cleaning facilities (Chapter 125, section 3.B(4)), this requirement is inapplicable and does not affect the stringency of the rule. d. How Do the Work Practice Standards Differ? The Dry Cleaning NESHAP requires all dry cleaning facilities to ``drain cartridge filters in their housing, or other sealed container, for a minimum of 24 hours, or treat such filters in an equivalent manner, before removal from the dry cleaning facility.'' 40 CFR 63.322(i). Chapter 125 requires that the cartridges be drained in the filter housing for at least 24 hours or as approved by DEP and EPA. Chapter 125, section 3.C(1). In addition, the rule requires that ``[w]hen any filtration cartridge is removed from the filter housing, it must be placed in a sealed container which does not allow the solvent in the filter to be emitted to the atmosphere, and must be disposed in accordance with State and federal requirements.'' Id. These requirements for the handling of cartridge filters are more specific and more stringent than the requirements of the Dry Cleaning NESHAP. The Dry Cleaning NESHAP also requires area sources to conduct weekly inspections for perceptible leaks. Area sources with lower perc consumption levels, however, are required to conduct such leak detections only biweekly. 40 CFR 63.322(k) through (l). Chapter 125 requires all dry cleaners, regardless of their perc consumption levels, to perform weekly inspections for perceptible leaks. Chapter 125, sections 3.C(3) and 4.D. As such, the work practice standards of Chapter 125 are more stringent than the Dry Cleaning NESHAP. e. How Do the Testing and Monitoring Requirements Differ? The Dry Cleaning NESHAP states that, when a carbon adsorber is used to comply with the operating standards of the rule, the concentration of perc in the exhaust of the carbon adsorber must be equal to or less than 100 parts per million (ppm) by volume and must be measured with a colorimetric detector tube that is designed to measure a concentration of 100 ppm by volume of perc in the air to an accuracy of 25 ppm. 40 CFR 63.323(b). Chapter 125 requires that any carbon adsorber used at a dry cleaning machine reduce perc emissions to no more than 50 ppm by volume and that the perc concentration be measured with a colorimetric detector tube designed to measure 10-500 ppmv of perc with an accuracy of 5 ppm. Chapter 125, section 4.A(1). Chapter 125 also requires that the sampling port for monitoring within the exhaust outlet of the carbon adsorber be easily accessible. Chapter 125, section 4.A(2). As such, the requirements of Chapter 125 for reduction and measurement of perc concentrations in carbon adsorber exhaust are more stringent than the corresponding requirements of the Dry Cleaning NESHAP. f. How Do the Reporting Requirements Differ? The Dry Cleaning NESHAP requires the owner or operator of any dry cleaning facility constructed or reconstructed after September 22, 1993, to file a certification of compliance status within 30 days of startup. 40 CFR 63.320(b) and 63.324(b). The certification must contain a calculation of the source's yearly perc solvent consumption limit and the source's compliance status with each applicable requirement of the Dry Cleaning NESHAP. 40 CFR 63.324(b)(1) through (3). This certification is a one-time requirement. Chapter 125 requires the owner or operator of any new source to submit, within 30 days of startup, a calculation of the facility's perc solvent consumption limit based on a 12-month rolling total limit and an indication of compliance status. Chapter 125, section 6.B. Chapter 125 also requires the owner or operator of any dry cleaning facility to submit an annual registration containing information about the facility's total perc consumption for each of the previous twelve months, a certification of the facility's status as a major or area source, and an estimate of the waste that was shipped off-site, among other things. Chapter 125, section 125.6.A. These reporting requirements allow ME DEP to inventory and track annual perc consumption and emissions for all area source dry cleaners. As such, the reporting requirements of Chapter 125 are more stringent than the corresponding requirements of the Dry Cleaning NESHAP. g. What Are the Title V Permit Requirements for Area Sources? Chapter 140.1.D(2) of Maine's regulations exempts area sources from the requirement to obtain a title V operating permit if EPA exempts these sources. Chapter 140, section 140.1.D(2). On December 19, 2005, EPA permanently exempted five categories of area sources subject to NESHAPs from the title V operating permit program, including area source perchloroethylene dry cleaners. 70 FR 75320 (December 19, 2005). Therefore, both Federal law and Maine's regulation at Chapter 140 exempt area source dry cleaners from title V permitting requirements. Major source dry cleaners in Maine are still required to obtain title V operating permits. h. How Does Maine's Regulation Address the General Provisions at 40 CFR Part 63, Subpart A? Chapter 125 contains requirements that are generally equivalent to or more stringent than the General Provisions at 40 CFR part 63, subpart A. EPA notes that Chapter 125 does not contain a requirement that corresponds to the notification requirement in 40 CFR 63.9(j), which states that any change in the information provided to EPA under [[Page 20898]] the applicable notification requirements ``shall be provided to the Administrator in writing within 15 calendar days after the change.'' As explained above, however, Chapter 125 requires all dry cleaning facilities to submit annual reports containing specific information about perc consumption, major or area source status, and compliance with the requirements of the rule. Any changes in such reported information must, therefore, be included in the next annual report to ME DEP and EPA. Given the more-detailed and regular reporting requirements of Maine's regulation, EPA has determined that the reporting requirements of Chapter 125 are, taken as a whole, more stringent than the requirements of subpart A. 2. What Is EPA's Action Regarding Chapter 125? After reviewing ME DEP's request for approval of ``Chapter 125: Perchloroethylene Dry Cleaner Regulation,'' EPA has determined that Maine's regulation meets all of the requirements necessary for partial rule substitution under section 112(l) of the CAA and 40 CFR 63.91 and 63.93. Chapter 125, taken as a whole, is no less stringent than the Federal Dry Cleaning NESHAP as applied to area sources. Therefore, EPA hereby approves Maine's request to implement and enforce Chapter 125 in place of the Dry Cleaning NESHAP for area sources in Maine. As of the effective date of this action, Chapter 125 is enforceable by EPA and by citizens under the CAA. Although ME DEP has primary responsibility to implement and enforce Chapter 125, EPA retains the authority to enforce any requirement of the rule upon its approval under CAA 112. CAA section 112(l)(7). 3. How Do Amendments to the Dry Cleaning NESHAP Affect This Rulemaking? On December 21, 2005 (70 FR 75884), EPA proposed amendments to the dry cleaning NESHAP. Under Sec. 63.91(e)(3), if EPA amends or otherwise revises a promulgated section 112 rule or requirement in a way that increases its stringency, EPA will notify any state with a delegated alternative of the need to revise its equivalency demonstration. EPA will consult with the state to set a time frame for the state to submit a revised equivalency demonstration. EPA will then review and approve the revised equivalency demonstration according to the procedures in 40 CFR part 63, subpart E. More stringent NESHAP amendments to a delegated alternative apply to all sources until EPA determines that the approved or revised alternative requirements are equivalent to the more stringent amendments. In accordance with these requirements, upon EPA's finalization of any amendments to the Dry Cleaning NESHAP that increase its stringency, EPA will determine whether these amendments necessitate a revision to Maine's alternative requirements. If so, we will notify ME DEP of the need to submit a revised equivalency demonstration in accordance with the requirements of 40 CFR part 63, subpart E. In any event, the more stringent NESHAP amendments will apply until EPA publishes in the Federal Register a determination as to the equivalency of Maine's requirements to the more stringent amendments. III. Summary of EPA's Action Pursuant to section 112(l) of the CAA and 40 CFR 63.91 and 63.93, EPA is approving ME DEP's request to implement and enforce ``Chapter 125: Perchloroethylene Dry Cleaner Regulation'' in place of the Federal Dry Cleaning NESHAP at 40 CFR part 63, subpart M, as it applies to area sources in Maine. This approval makes Chapter 125 federally enforceable and consolidates the compliance requirements for area source dry cleaners in Maine into one set of regulations. Major source dry cleaning facilities remain subject to the Federal requirements at 40 CFR part 63, subpart M and the Title V permitting requirements of 40 CFR part 70. Area source dry cleaning facilities are exempt from Title V permitting requirements as of December 19, 2005. 70 FR 75320. EPA views this approval of Maine's request to implement and enforce Chapter 125 in place of the Dry Cleaning NESHAP for area sources as a noncontroversial action, given that the state program has been effective for several years and is, taken as a whole, more stringent than the Dry Cleaning NESHAP. EPA anticipates no adverse comments. Therefore, EPA is publishing this direct final rule without prior proposal. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal for this action should relevant adverse comments be filed. This action will be effective on June 23, 2006, without further notice, unless EPA receives relevant adverse comments by May 24, 2006. If EPA receives such comments, then it will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this rule. Any parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 23, 2006 and no further action will be taken on the proposed rule. IV. Statutory and Executive Order Reviews A. Executive Orders 12866 and 13045 The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled ``Regulatory Planning and Review.'' This rule is not subject to Executive Order 13045, entitled, ``Protection of Children from Environmental Health Risks and Safety Risks,'' because it is not an ``economically significant'' action under Executive Order 12866. B. Executive Order 13211 This rule is not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22,2001)) because it is not a significant regulatory action under Executive Order 12866. C. Executive Order 13175 Executive Order 13175, entitled ``Consultation and Coordination with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure ``meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.'' ``Policies that have tribal implications'' is defined in the Executive Order to include regulations that have ``substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.'' This final rule does not have tribal implications. This action allows the State of Maine to implement equivalent state requirements in lieu of pre-existing Federal requirements as applied only to area source drycleaners. This action will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. [[Page 20899]] D. Executive Order 13132 Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure ``meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.'' ``Policies that have federalism implications'' is defined in the Executive Order to include regulations that have ``substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.'' This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action simply allows Maine to implement equivalent alternative requirements to replace a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, Executive Order 13132 does not apply to this rule. E. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental entities with jurisdiction over populations of less than 50,000. This final rule will not have a significant impact on a substantial number of small entities because approvals under under 40 CFR 63.93 do not create any new requirements. Such approvals simply allow the State to implement and enforce equivalent requirements in place of the Federal requirements that EPA is already imposing. Therefore, because this approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. F. Unfunded Mandates Under section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate, or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action allows Maine to implement equivalent alternative requirements in lieu of pre-existing requirements under Federal law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. G. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 804(2). H. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, the NTTAA does not apply to this rule. I. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 23, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)). List of Subjects in 40 CFR Part 63 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of section 112 of the Clean Air Act, as amended, 42 U.S.C. 7412. Dated: March 16, 2006. Robert W. Varney, Regional Administrator, EPA-New England. 0 40 CFR part 63 is amended as follows: PART 63--[AMENDED] 0 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart A--[Amended] 0 2. Section 63.14 is amended by adding paragraph (d)(6) to read as follows: Sec. 63.14 Incorporation by reference. * * * * * (d) * * * (6) Maine Regulations Applicable to Hazardous Air Pollutants (March 2006). Incorporation By Reference approved [[Page 20900]] for Sec. 63.99(a)(19)(iii) of subpart E of this part. * * * * * Subpart E--[Amended] 0 3. Section 63.99 is amended by adding paragraph (a)(19)(iii) to read as follows: Sec. 63.99 Delegated Federal authorities. (a) * * * (19) * * * (iii) Affected area sources within Maine must comply with the Maine Regulations Applicable to Hazardous Air Pollutants (incorporated by reference as specified in Sec. 63.14) as described in paragraph (a)(19)(iii)(A) of this section: (A) The material incorporated into the Maine Department of Environmental Protection regulations at Chapter 125 pertaining to dry cleaning facilities in the State of Maine's jurisdiction, and approved under the procedures in Sec. 63.93 to be implemented and enforced in place of the Federal NESHAP for Perchloroethylene Dry Cleaning Facilities (subpart M of this part), effective as of December 19, 2005, for area sources only, as defined in Sec. 63.320(h). (B) [Reserved] * * * * * [FR Doc. 06-3855 Filed 4-21-06; 8:45 am] BILLING CODE 6560-50-P

usgpo

2024-10-08T14:08:33.266698

FR

FR-2006-04-24/06-3845

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Page 20900] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3845] ======================================================================= ----------------------------------------------------------------------- GENERAL SERVICES ADMINISTRATION 41 CFR Part 102-39 [FMR Amendment 2006-02; FMR Case 2006-102-3] RIN 3090-AI26 Federal Management Regulation; Replacement of Personal Property Pursuant to the Exchange/Sale Authority AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The General Services Administration is amending the Federal Management Regulation (FMR) language that pertains to personal property by correcting references to outdated or superceded provisions of law or regulation; correcting text to be in conformance with revised laws, regulation, or Federal agency responsibilities; and clarifying text where the intended meaning could be updated or made clearer. The FMR and any corresponding documents may be accessed at GSA's Web site at http://www.gsa.gov/fmr. DATES: Effective Date: May 24, 2006. FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat, Room 4035, GSA Building, Washington, DC, 20405, (202) 208-7312, for information pertaining to status or publication schedules. For clarification of content, contact Mr. Robert Holcombe, Office of Governmentwide Policy, Office of Travel, Transportation, and Asset Management (MT), at (202) 501-3828 or e-mail at [email protected]. Please cite Amendment 2006-02, FMR case 2006- 102-3. SUPPLEMENTARY INFORMATION: A. Background In the years since 41 CFR part 102-39 was published as a final rule, the references to other regulations which migrated from the Federal Property Management Regulations (FPMR) (41 CFR chapter 101) to the Federal Management Regulation (FMR) (41 CFR chapter 102) became outdated. Also, Public Law 107-217 revised and recodified certain provisions of the Federal Property and Administrative Services Act of 1949 (Property Act). For example, the Property Act provisions and topics previously found at 40 U.S.C. 471-514 will now generally be found at 40 U.S.C. 101-705. This revised regulation updates the title 40 U.S.C. citations to reflect the changes made by Public Law 107-217. Additionally, in the intervening years since these three regulations were published, several agencies have moved or changed names. Finally, updating or clarifying revisions were made where the revisions are seen as administrative or clerical in nature. B. Executive Order 12866 The General Services Administration (GSA) has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866. C. Regulatory Flexibility Act This final rule is not required to be published in the Federal Register for comment. Therefore, the Regulatory Flexibility Act does not apply. D. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq. E. Small Business Regulatory Enforcement Fairness Act This final rule is exempt from Congressional review under 5 U.S.C. 801 since it relates solely to agency management and personnel. List of Subjects in 41 CFR Part 102-39 Government property management, Reporting and recordkeeping requirements, and Government property. Dated: April 14, 2006. David L. Bibb, Acting Administrator of General Services. 0 For the reasons set forth in the preamble, GSA amends 41 CFR part 102- 39 as set forth below: PART 102-39--REPLACEMENT OF PERSONAL PROPERTY PURSUANT TO THE EXCHANGE/SALE AUTHORITY 0 1. The authority citation for 41 CFR part 102-39 continues to read as follows: Authority: 40 U.S.C. 503 and 121(c). Sec. 102-39.45 [Amended] 0 2. Amend Sec. 102-39.45 in paragraph (l) by removing ''40 U.S.C. 484(i) and adding ''40 U.S.C. 548 in its place. 0 3. Amend Sec. 102-39.75 by revising paragraph (b) to read as follows: Sec. 102-39.75 What information am I required to report? * * * * * (b) Submit your report electronically or by mail to the General Services Administration, Office of Travel, Transportation and Asset Management (MT), 1800 F Street, NW., Washington, DC 20405. [FR Doc. 06-3845 Filed 4-21-06; 8:45 am] BILLING CODE 6820-14-S

usgpo

2024-10-08T14:08:33.287323

FR

FR-2006-04-24/06-3830

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Rules and Regulations] [Pages 20900-20901] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3830] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 051209329-5329-01; I.D. 041406A] Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Closure of the Quarter II Fishery for Loligo Squid AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Closure. ----------------------------------------------------------------------- [[Page 20901]] SUMMARY: NMFS announces that the directed fishery for Loligo squid in the Exclusive Economic Zone (EEZ) will be closed effective 0001 hours, April 21, 2006. Vessels issued a Federal permit to harvest Loligo squid may not retain or land more than 2,500 lb (1,134 kg) of Loligo squid per trip for the remainder of the quarter (through June 30, 2006). This action is necessary to prevent the fishery from exceeding its Quarter II quota and to allow for effective management of this stock. DATES: Effective 0001 hours, April 21, 2006, through 2400 hours, June 30, 2006. FOR FURTHER INFORMATION CONTACT: Don Frei, Fishery Management Specialist, 978-281-9221, Fax 978-281-9135. SUPPLEMENTARY INFORMATION: Regulations governing the Loligo squid fishery are found at 50 CFR part 648. The regulations require specifications for maximum sustainable yield, initial optimum yield, allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing, and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. The procedures for setting the annual initial specifications are described in Sec. 648.21. The 2006 specification of DAH for Loligo squid was set at 16,872.4 mt (71 FR 10621, March 2, 2006). This amount is allocated by quarter, as shown below. Table. 1 Loligo Squid Quarterly Allocations. ------------------------------------------------------------------------ Metric Research Quarter Percent Tons\1\ Set-aside ------------------------------------------------------------------------ I (Jan-Mar) 33.23 5,606.70 N/A II (Apr-Jun) 17.61 2,971.30 N/A III (Jul-Sep) 17.3 2,918.90 N/A IV (Oct-Dec) 31.86 5,375.60 N/A Total 100 16,872.50 127.5 ------------------------------------------------------------------------ \1\Quarterly allocations after 127.5 mt research set-aside deduction. Section 648.22 requires NMFS to close the directed Loligo squid fishery in the EEZ when 80 percent of the quarterly allocation is harvested in Quarters I, II, and III, and when 95 percent of the total annual DAH has been harvested. NMFS is further required to notify, in advance of the closure, the Executive Directors of the Mid-Atlantic, New England, and South Atlantic Fishery Management Councils; mail notification of the closure to all holders of Loligo squid permits at least 72 hours before the effective date of the closure; provide adequate notice of the closure to recreational participants in the fishery; and publish notification of the closure in the Federal Register. The Administrator, Northeast Region, NMFS, based on dealer reports and other available information, has determined that 80 percent of the DAH for Loligo squid in Quarter II will be harvested. Therefore, effective 0001 hours, April 21, 2006, the directed fishery for Loligo squid is closed and vessels issued Federal permits for Loligo squid may not retain or land more than 2,500 lb (1,134 kg) of Loligo during a calendar day. The directed fishery will reopen effective 0001 hours, July 1, 2006, when the Quarter III quota becomes available. Classification This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 et seq. Dated: April 17, 2006. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 06-3830 Filed 4-18-06; 3:38 pm] BILLING CODE 3510-22-S

usgpo

2024-10-08T14:08:33.306063

FR

FR-2006-04-24/E6-6071

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20902-20909] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6071] ======================================================================== Proposed Rules Federal Register ________________________________________________________________________ This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. ======================================================================== Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Proposed Rules [[Page 20902]] DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 984 [Docket No. AO-192-A7; FV06-984-1] Walnuts Grown in California; Hearing on Proposed Amendment of Marketing Agreement and Order No. 984 AGENCY: Agricultural Marketing Service, USDA. ACTION: Notice of hearing on proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: Notice is hereby given of a public hearing to receive evidence on proposed amendments to Marketing Order No. 984, which regulates the handling of walnuts grown in California. The amendments are proposed by the Walnut Marketing Board (Board), which is responsible for local administration of order 984. The amendments would: Change the marketing year; include ``pack'' as a handler function; restructure the Board and revise nomination procedures; rename the Board and add authority to change Board composition; modify Board meeting and voting procedures; add authority for marketing promotion and paid advertising; add authority to accept contributions, and to carry over excess assessment funds; broaden the scope of the quality control provisions and add the authority to recommend different regulations for different market destinations; add authority for the Board to appoint more than one inspection service; replace outdated order language with current industry terminology; and other related amendments. The USDA proposes three additional amendments: To establish tenure limitations for Board members, to require that continuance referenda be conducted on a periodic basis to ascertain producer support for the order, and to make any changes to the order as may be necessary to conform with any amendment that may result from the hearing. The proposed amendments are intended to improve the operation and functioning of the marketing order program. DATES: The hearing will be held on May 17, 2006, in Modesto, California, beginning at 8:30 a.m. and ending at 4:30 p.m. The hearing will continue, if necessary, on May 18, 2006, commencing at 8:30 a.m. ADDRESSES: The hearing location is: Stanislaus County Farm Bureau, 1201 L Street, Modesto, CA, 95353, telephone: (209) 522-7278. FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 1035, Moab, Utah; telephone: (435) 259-7988, Fax: (435) 259-4945; or Kathleen M. Finn, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax (202) 720-8938. Small businesses may request information on this proceeding by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938. SUPPLEMENTARY INFORMATION: This administrative action is instituted pursuant to the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.'' This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866. The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) seeks to ensure that within the statutory authority of a program, the regulatory and informational requirements are tailored to the size and nature of small businesses. Interested persons are invited to present evidence at the hearing on the possible regulatory and informational impacts of the proposals on small businesses. The amendments proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed amendments would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with the proposals. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. The hearing is called pursuant to the provisions of the Act and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900). The proposed amendments are the result of a committee appointed by the Board to conduct a review of the order. The committee met several times in 2005 and drafted proposed amendments to the order and presented them at industry meetings. The proposed amendments were then forwarded to the Board, which unanimously approved them. The amendments are intended to streamline organization and administration of the marketing order program. The Board's request for a hearing was submitted to USDA on March 3, 2004. The Board's proposed amendments to Marketing Order No. 984 (order) are summarized below. 1. Amend the order to change the marketing year from August 1 through July 31 to September 1 through August 31. This proposal would amend Sec. 984.7, Marketing year, and would result in conforming changes being made to Sec. 984.36, Term of Office, and Sec. 984.48 Marketing estimates and recommendations. 2. Amend the order by specifying that the act of packing walnuts is considered a handling function. This proposal would amend Sec. 984.13, To handle, as well as clarify the definition of ``pack'' [[Page 20903]] in Sec. 984.15 by including the term ``shell.'' 3. (a) Amend all parts of the order that refer to cooperative seats on the Board, redistribute member seats among districts, and provide designated seats for a major handler, if such handler existed. A major handler would have to handle 35 percent or more of the crop. This proposal would amend Sec. 984.35, Walnut Marketing Board and Sec. 984.14, Handler. 3. (b) Amend the Board member nomination process to reflect proposed changes in the Board structure, as outlined in 3(a). This proposal would amend Sec. 984.37, Nominations, and Sec. 984.40, Alternate. 4. Require Board nominees to submit a written qualification and acceptance statement prior to selection by USDA. This proposal would amend Sec. 984.39, Qualify by acceptance. 5. Change the name of the Walnut Marketing Board to the California Walnut Board. This proposal would amend Sec. 984.6, Board, and Sec. 984.35, Walnut Marketing Board. 6. Add authority to reestablish districts, reapportion members among districts, and revise groups eligible for representation on the Board. This proposal would add a new paragraph (d) to Sec. 984.35, Walnut Marketing Board. 7. Amend Board quorum and voting requirements to add percentage requirements, add authority for the Board to vote by ``any other means of communication'' (including facsimile) and add authority for Board meetings to be held by telephone or by ``any other means of communication'', providing that all votes cast at such meetings shall be confirmed in writing. This proposal would amend Sec. 984.45, Procedure and would result in a conforming change in Sec. 984.48(a), Marketing estimates and recommendations. 8. Amend the order to add authority to carry over excess assessment funds. This proposal would amend Sec. 984.69, Assessments. 9. Amend the order by adding authority to accept contributions. This proposal would add a new Sec. 984.70, Contributions. 10. Amend the order to clarify that members and alternate members may be reimbursed for expenses incurred while performing their duties and that reimbursement includes per diem. This proposal would amend Sec. 984.42, Expenses. 11. Amend the order to add authority for the Board to appoint more than one inspection service as long as the functions performed by each service are separate and do not conflict with each other. This proposal would amend Sec. 984.51, Inspection and certification of inshell and shelled walnuts. 12. (a) Amend the order by broadening the scope of the quality control provisions and by adding authority to recommend different regulations for different market destinations. This proposal would amend Sec. 984.50, Grade and size regulations. 12. (b) Amend the order by adding authority that would allow for shelled walnuts to be inspected after having been sliced, chopped, ground or in any other manner changed from shelled walnuts, if regulations for such walnuts are in effect. This proposal would amend Sec. 984.52, Processing of shelled walnuts. 13. Amend the order by adding authority for marketing promotion and paid advertising. This proposal would amend Sec. 984.46, Research and development. 14. Amend the order to replace the terms ``carryover'' with ``inventory,'' and ``mammoth'' with ``jumbo,'' to reflect current day industry procedures. This proposal would amend Sec. 984.21, Handler inventory, Sec. 984.67, Exemption, and would also result in conforming changes being made to Sec. 984.48, Marketing estimates and recommendations, and Sec. 984.71, Reports of handler carryover. 15. (a) Amend the order to clarify the term ``transfer'' and to add authority for the Board to recommend methods and procedures, including necessary reports, for administrative oversight of such transfers. This proposal would amend Sec. 984.59, Interhandler transfers. 15. (b) Amend the order to add authority to require reports of interhandler transfers. This proposal would amend Sec. 984.73, Reports of walnut receipts. 16. Update and simplify the language in Sec. 984.22, Trade demand, to state ``United States and its territories,'' rather than name ``Puerto Rico'' and ``The Canal Zone''. 17. Amend the order by adding language that would acknowledge that the Board may deliberate, consult, cooperate and exchange information with the California Walnut Commission. Any information sharing would be kept confidential. This would add a new Sec. 984.91, Relationship with the California Walnut Commission. The Board works with USDA in administering the orders. These proposals have not received the approval of the Department. The Board believes that the proposed changes would improve the administration, operation, and functioning of the programs in effect for walnuts grown in California. In addition, USDA proposes adding three provisions that would help assure that the operation of the program conforms to current Department policy and that USDA can make any necessary conforming changes. These provisions would: 18. Establish tenure requirements for Board members. This proposal would amend Sec. 984.36, Term of office. 19. Require that continuance referenda be conducted on a periodic basis to ascertain industry support for the order and add more flexibility in the termination provisions. This proposal would amend Sec. 984.89 Effective time and termination. 20. Make such changes as may be necessary to the order to conform with any amendment thereto that may result from the hearing. The public hearing is held for the purpose of: (i) Receiving evidence about the economic and marketing conditions which relate to the proposed amendments of the order; (ii) determining whether there is a need for the proposed amendments to the order; and (iii) determining whether the proposed amendments or appropriate modifications thereof will tend to effectuate the declared policy of the Act. Testimony is invited at the hearing on all the proposals and recommendations contained in this notice, as well as any appropriate modifications or alternatives. All persons wishing to submit written material as evidence at the hearing should be prepared to submit four copies of such material at the hearing and should have prepared testimony available for presentation at the hearing. From the time the notice of hearing is issued and until the issuance of a final decision in this proceeding, USDA employees involved in the decisional process are prohibited from discussing the merits of the hearing issues on an ex parte basis with any person having an interest in the proceeding. The prohibition applies to employees in the following organizational units: Office of the Secretary of Agriculture; Office of the Administrator, AMS; Office of the General Counsel, except any designated employee of the General Counsel assigned to represent the Committee in this proceeding; and the Fruit and Vegetable Programs, AMS. Procedural matters are not subject to the above prohibition and may be discussed at any time. [[Page 20904]] List of Subjects in 7 CFR Part 984 Walnuts, Marketing agreements, Nuts, Reporting and recordkeeping requirements. PART 984--WALNUTS GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 984 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Testimony is invited on the following proposals or appropriate alternatives or modifications to such proposals. Proposals submitted by the Walnut Marketing Board are as follows: Proposal Number 1 3. Revise Sec. 984.7 to read as follows: Sec. 984.7 Marketing year. Marketing year means the twelve months from September 1 to the following August 31, both inclusive, or any other such period deemed appropriate and recommended by the Board for approval by the Secretary. 4. Revise Sec. 984.36 to read as follows: Sec. 984.36 Term of office. The term of office of Board members, and their alternates shall be for a period of two years ending on August 31 of odd-numbered years, but they shall serve until their respective successors are selected and have qualified. 5. Revise Sec. 984.48 to read as follows: Sec. 984.48 Marketing estimates and recommendations. (a) Each marketing year the Board shall hold a meeting, prior to October 20, for the purpose of recommending to the Secretary a marketing policy for such year. Each year such recommendation shall be adopted by the affirmative vote of at least six members of the Board and shall include the following, and where applicable, on a kernelweight basis: (1) Its estimate of the orchard-run production in the area of production for the marketing year; (2) Its estimate of the handler carryover on September 1 of inshell and shelled walnuts; (3) Its estimate of the merchantable and substandard walnuts in the production; (4) Its estimate of the trade demand for such marketing year for shelled and inshell walnuts, taking into consideration trade carryover, imports, prices, competing nut supplies, and other factors; (5) Its recommendation for desirable handler carryover of inshell and shelled walnuts on August 31 of each marketing year; (6) Its recommendation as to the free and reserve percentages to be established for walnuts; (7) Its recommendation of the percentage of reserve walnuts that may be exported pursuant to Sec. 984.56, when it determines that the quantity of reserve walnuts that may be exported should be limited; (8) Its opinion as to whether grower prices are likely to exceed parity; and (9) Its recommendation for change, if any, in grade and size regulations. (b) [Reserved]. Proposal Number 2 6. Revise Sec. 984.13 to read as follows: Sec. 984.13 To handle. To handle means to pack, sell, consign, transport, or ship (except as a common or contract carrier of walnuts owned by another person), or in any other way to put walnuts, inshell or shelled, into the current of commerce either within the area of production or from such area to any point outside thereof, or for a manufacturer or retailer within the area of production to purchase directly from a grower: The term ``to handle'' shall not include sales and deliveries within the area of production by growers to handlers, or between handlers. 7. Revise Sec. 984.15 to read as follows: Sec. 984.15 Pack. Pack means to bleach, clean, grade, shell or otherwise prepare walnuts for market as inshell or shelled walnuts. Proposal Number 3(a) 8. Revise Sec. 984.35 to read as follows: Sec. 984.35 Walnut Marketing Board. (a) A Walnut Marketing Board is hereby established consisting of 10 members selected by the Secretary, each of whom shall have an alternate nominated and selected in the same way and with the same qualifications as the member. The members and their alternates shall be selected by the Secretary from nominees submitted by each of the following groups or from other eligible persons belonging to such groups: (1) Two handler members from District 1; (2) Two handler members from District 2; (3) Two grower members from District 1; (4) Two grower members from District 2; (5) One member nominated at-large from the production area; and, (6) One member and alternate who shall be selected after the selection of the nine handler and grower members and after the opportunity for such members to nominate the tenth member and alternate. The tenth member and his or her alternate shall be neither a walnut grower nor a handler. (b) In the event that one handler handles 35% or more of the crop the membership of the Board shall be as follows: (1) Two handler members to represent the handler that handles 35% or more of the crop; (2) Two members to represent growers who market their walnuts through the handler that handles 35% or more of the crop; (3) Two handler members to represent handlers that do not handle 35% or more of the crop; (4) One member to represent growers from District 1 who market their walnuts through handlers that do not handle 35% or more of the crop; (5) One member to represent growers from District 2 who market their walnuts through handlers that do not handle 35% or more of the crop; (6) One member to represent growers who market their walnuts through handlers that do not handle 35% or more of the crop shall be nominated at large from the production area; and, (7) One member and alternate who shall be selected after the selection of the nine handler and grower members and after the opportunity for such members to nominate the tenth member and alternate. The tenth member and his or her alternate shall be neither a walnut grower nor a handler. (c) Grower Districts: (1) District 1. District 1 encompasses the counties in the State of California that lie north of a line drawn on the south boundaries of San Mateo, Alameda, San Joaquin, Calaveras, and Alpine Counties. (2) District 2. District 2 shall consist of all other walnut producing counties in the State of California south of the boundary line set forth in paragraph (c)(1) of this section. 9. Revise Sec. 984.14 to read as follows: Sec. 984.14 Handler. Handler means any person who handles inshell or shelled walnuts. Proposal Number 3(b) 10. Revise Sec. 984.37 to read as follows: Sec. 984.37 Nominations. (a) Nominations for all grower members shall be submitted by ballot pursuant to an announcement by press releases of the Board to the news media in the walnut producing areas. Such releases shall provide pertinent voting [[Page 20905]] information, including the names of candidates and the location where ballots may be obtained. Ballots shall be accompanied by full instructions as to their markings and mailing and shall include the names of incumbents who are willing to continue serving on the Board and such other candidates as may be proposed pursuant to methods established by the Board with the approval of the Secretary. Each grower, regardless of the number and location of his or her walnut orchard(s), shall be entitled to cast only one ballot in the nomination and each vote shall be given equal weight. If the grower has orchard(s) in both grower districts, he or she shall advise the Board of the district in which he/she desires to vote. The person receiving the highest number of votes for each grower position shall be the nominee. (b) Nominations for handler members shall be submitted on ballots mailed by the Board to all handlers in their respective Districts. All handlers' votes shall be weighted by the kernelweight of walnuts certified as merchantable by each handler during the preceding marketing year. Each handler in the production area may vote for handler member nominees and their alternates. However, no handler with less than 35% of the crop shall have more than one member and one alternate member. The person receiving the highest number of votes for each handler member position shall be the nominee for that position. (c) In the event that one handler handles 35% or more of the crop the membership of the Board, nominations shall be as follows: (1) Nominations of growers who market their walnuts to the handler that handles 35% or more of the crop shall be conducted by that handler in such a manner that is consistent with the requirements of nominations of growers conducted by the Board. The two persons receiving the highest number of votes for the grower positions attributed to that handler (Group (b)(2) of Sec. 984.35) shall be the nominees. The two persons receiving the third and fourth highest number of votes shall be designated as alternates. (2) Nominations for the two handler members representing the major handler shall be conducted by the major handler in such a manner that is consistent with the requirements of nominations of handlers conducted by the Board. The two (2) persons receiving the highest number of votes for the major handler positions shall be the nominees. The two persons receiving the third and fourth highest number of votes shall be designated as alternates. (3) Nominations on behalf of all other grower members (Groups (b) (4), (5) and (6) of Sec. 984.35) shall be submitted after ballot by such growers pursuant to an announcement by press releases of the Board to the news media in the walnut producing areas. Such releases shall provide pertinent voting information, including the names of candidates and the location where ballots may be obtained. Ballots shall be accompanied by full instructions as to their markings and mailing and shall include the names of incumbents who are willing to continue serving on the Board and such other candidates as may be proposed pursuant to methods established by the Board with the approval of the Secretary. Each grower in Groups (Groups (b) (4), (5) and (6) of Sec. 984.35), regardless of the number and location of his or her walnut orchard(s), shall be entitled to cast only one ballot in the nomination and each vote shall be given equal weight. If the grower has orchard(s) in both grower districts he or she shall advise the Board of the district in which he or she desires to vote. The person receiving the highest number of votes for grower position shall be the nominee. (4) Nominations for handler members representing handlers that do not handle 35% or more of the crop shall be submitted on ballots mailed by the Board to those handlers. The votes of these handlers shall be weighted by the kernelweight of walnuts certified as merchantable by each handler during the preceding marketing year. Each handler in the production area may vote for handler member nominees and their alternates of this subsection. However, no handler shall have more than one person on the Board either as member or alternate member. The person receiving the highest number of votes for a handler member position of this subsection shall be the nominee for that position. (d) Each grower is entitled to participate in only one nomination process, regardless of the number of handler entities to whom he or she delivers walnuts. If a grower delivers walnuts to more than one handler entity, the grower must choose which nomination process he or she participates in. (e) The nine members shall nominate one person as member and one person as alternate for the tenth member position. The tenth member and alternate shall be nominated by not less than 6 votes cast by the nine members of the Board. (f) Nominations in the foregoing manner received by the Board shall be reported to the Secretary on or before June 15 of each odd-numbered year, together with a certified summary of the results of the nominations. If the Board fails to report nominations to the Secretary in the manner herein specified by June 15 of each odd-numbered year, the Secretary may select the members without nomination. If nominations for the tenth member are not submitted by September 1 of any such year, the Secretary may select such member without nomination. (g) The Board, with the approval of the Secretary, may change these nomination procedures should the Board determine that a revision is necessary. 11. Revise Sec. 984.40 to read as follows: Sec. 984.40 Alternate. (a) An alternate for a member of the Board shall act in the place and stead of such member in his or her absence or in the event of his or her death, removal, resignation, or disqualification, until a successor for his or her unexpired term has been selected and has qualified. (b) In the event any member of the Board and his or her alternate are both unable to attend a meeting of the Board, any alternate for any other member representing the same group as the absent member may serve in the place of the absent member, or in the event such other alternate cannot attend, or there is no such other alternate, such member, or in the event of his or her disability or a vacancy, his or her alternate may designate, subject to the disapproval of the Secretary, a temporary substitute to attend such meeting. At such meeting such temporary substitute may act in the place of such member. Proposal Number 4 12. Revise Sec. 984.39 to read as follows: Sec. 984.39 Qualify by acceptance. Any person nominated to serve as a member or alternate member of the Board shall, prior to selection by USDA, qualify by filing a written qualification and acceptance statement indicating such person's willingness to serve in the position for which nominated. Proposal Number 5 13. Revise Sec. 984.6 to read as follows: Sec. 984.6 Board. Board means the California Walnut Board established pursuant to Sec. 934.35. 14. In addition to the Board's recommended changes as set forth in Proposal No. 3(a), revise Sec. 984.35(a) introductory text to read as follows: [[Page 20906]] Sec. 984.35 California Walnut Board. (a) A California Walnut Board is hereby established consisting of 10 members selected by the Secretary, each of whom shall have an alternate nominated and selected in the same way and with the same qualifications as the member. The members and their alternates shall be selected by the Secretary from nominees submitted by each of the following groups or from other eligible persons belonging to such groups: * * * * * Proposal Number 6 15. In addition to the Board's recommended changes as set forth in Proposal No.3(a) and Proposal No. 5, add a new paragraph (d) to Sec. 984.35 to read as follows: Sec. 984.35 California Walnut Board. * * * * * (d) The Secretary, upon recommendation of the Board, may reestablish districts, may reapportion members among districts, and may revise the groups eligible for representation on the Board specified in paragraphs (a) and (b) of this section: Provided, That any such recommendation shall require at least six concurring votes of the voting members of the Board. In recommending any such changes, the following shall be considered: (1) Shifts in acreage within districts and within the production area during recent years; (2) The importance of new production in its relation to existing districts; (3) The equitable relationship between Board apportionment and districts; (4) Changes in industry structure and/or the percentage of crop represented by various industry entities resulting in the existence of two or more major handlers; (5) Other relevant factors. Proposal Number 7 16. Revise Sec. 984.45 to read as follows: Sec. 984.45 Procedure. (a) The members of the Board shall select a chairman from their membership, and shall select such other officers and adopt such rules for the conduct of Board business as they deem advisable. The Board shall give the Secretary the same notice of its meetings as is given to members of the Board. (b) All decisions of the Board, except where otherwise specifically provided, shall be by a sixty-percent (60%) super-majority vote of the members present. A quorum of six members, or the equivalent of sixty percent (60%) of the Board, shall be required for the conduct of Board business. (c) The Board may vote by mail or telegram, or by any other means of communication, upon due notice to all members. When any proposition is to be voted on by any of these methods, one dissenting vote shall prevent its adoption. The Board, with the approval of the Secretary, shall prescribe the minimum number of votes that must be cast when voting is by any of these methods, and any other procedures necessary to carry out the objectives of this paragraph. (d) The Board may provide for meetings by telephone, or other means of communication and any vote cast at such a meeting shall be confirmed promptly in writing: Provided, That if any assembled meeting is held, all votes shall be cast in person. 17. In addition to the Board's recommended changes as set forth in Proposal No. 1, revise Sec. 984.48(a) introductory text to read as follows: Sec. 984.48 Marketing estimates and recommendations. (a) Each marketing year the Board shall hold a meeting, prior to October 20, for the purpose of recommending to the Secretary a marketing policy for such year. Each year such recommendation shall be adopted by the affirmative vote of at least 60% of the Board and shall include the following, and where applicable, on a kernelweight basis: * * * * * Proposal Number 8 18. Revise Sec. 984.69 to read as follows: Sec. 984.69 Assessments. (a) Requirement for payment. Each handler shall pay the Board, on demand, his or her pro rata share of the expenses authorized by the Secretary for each marketing year. Each handler's pro rata share shall be the rate of assessment per kernelweight pound of walnuts fixed by the Secretary times the kernelweight of merchantable walnuts he or she has certified. At any time during or after the marketing year the Secretary may increase the assessment rate as necessary to cover authorized expenses and each handler's pro rata share shall be adjusted accordingly. (b) Reserve walnut pool expenses. The Board is authorized temporary use of funds derived from assessments collected pursuant to paragraph (a) of this section to defray expenses incurred in disposing of reserve walnuts pooled. All such expenses shall be deducted from the proceeds obtained by the Board from the sale or other disposal of pooled reserve walnuts. (c) Accounting. If at the end of a marketing year the assessments collected are in excess of expenses incurred, such excess shall be accounted for in accordance with one of the following: (1) If such excess is not retained in a reserve, as provided in paragraph (c)(2) or (c)(3) of this section, it shall be refunded to handlers from whom collected and each handler's share of such excess funds shall be the amount of assessments he or she has paid in excess of his or her pro rata share of the actual expenses of the Board. (2) Excess funds may be used temporarily by the Board to defray expenses of the subsequent marketing year: Provided, That each handler's share of such excess shall be made available to him or her by the Board within five months after the end of the year. (3) The Board may carry over such excess into subsequent marketing years as a reserve: Provided, That funds already in reserve do not exceed approximately two years' budgeted expenses. In the event that funds exceed two marketing years' budgeted expenses, future assessments will be reduced to bring the reserves to an amount that is less than or equal to two marketing years' budgeted expenses. Such reserve funds may be used: (i) To defray expenses, during any marketing year, prior to the time assessment income is sufficient to cover such expenses; (ii) To cover deficits incurred during any year when assessment income is less than expenses; (iii) To defray expenses incurred during any period when any or all provisions of this part are suspended; (iv) To meet any other such costs recommended by the Board and approved by the Secretary. (d) Termination. Any money collected from assessments hereunder and remaining unexpended in the possession of the Board upon termination of this part shall be distributed in such manner as the Secretary may direct. Proposal Number 9 19. Add a new Sec. 984.70 to read as follows: Sec. 984.70 Contributions. The Board may accept voluntary contributions but these shall only be used to pay expenses incurred pursuant to Sec. 984.46, Research and development. Furthermore, such contributions shall be free from any encumbrances by the [[Page 20907]] donor and the Board shall retain complete control of their use. Proposal Number 10 20. Revise Sec. 984.42 to read as follows: Sec. 984.42 Expenses. The members and their alternates of the Board shall serve without compensation, but shall be allowed their necessary expenses incurred by them in the performance of their duties under this part. Proposal Number 11 21. Revise Sec. 984.51 to read as follows: Sec. 984.51 Inspection and certification of inshell and shelled walnuts. (a) Before or upon handling of any walnuts for use as free or reserve walnuts, each handler at his or her own expense shall cause such walnuts to be inspected to determine whether they meet the then applicable grade and size regulations. Such inspection shall be performed by the inspection service or services designated by the Board with the approval of the Secretary; Provided, That if more than one inspection service is designated, the functions performed by each service shall be separate, and shall not conflict with each other. Handlers shall obtain a certificate for each inspection and cause a copy of each certificate issued by the inspection service to be furnished to the Board. Each certificate shall show the identity of the handler, quantity of walnuts, the date of inspection, and for inshell walnuts the grade and size of such walnuts as set forth in the United States Standards for Walnuts (Juglans regia) in the Shell. Certificates covering reserve shelled walnuts for export shall also show the grade, size, and color of such walnuts as set forth in the United States Standards for Shelled Walnuts (Juglans regia). The Board, with the approval of the Secretary, may prescribe such additional information to be shown on the inspection certificates as it deems necessary for the proper administration of this part. (b) Inshell merchantable walnuts certified shall be converted to the kernelweight equivalent at 45 percent of their inshell weight. This conversion percentage may be changed by the Board with the approval of the Secretary. (c) Upon inspection, all walnuts for use as free or reserve walnuts shall be identified by tags, stamps, or other means of identification prescribed by the Board and affixed to the container by the handler under the supervision of the Board or of a designated inspector and such identification shall not be altered or removed except as directed by the Board. The assessment requirements in Sec. 984.69 shall be incurred at the time of certification. (d) Whenever the Board determines that the length of time in storage or conditions of storage of any lot of merchantable walnuts which has been previously inspected have been or are such as normally to cause deterioration, such lot of walnuts shall be reinspected at the handler's expense and recertified as merchantable prior to shipment. Proposal Number 12(a) 22. Revise Sec. 984.50 to read as follows: Sec. 984.50 Grade, quality and size regulations. (a) Minimum standard for inshell walnuts. Except as provided in Sec. 984.64, no handler shall handle inshell walnuts unless such walnuts are equal to or better than the requirements of U.S. No. 2 grade and baby size as defined in the then effective United States Standards for Walnuts (Juglans regia) in the Shell. This minimum standard may be modified by the Secretary on the basis of a Board recommendation or other information. (b) Minimum standard for shelled walnuts. Except as provided in Sec. 984.64, no handler shall handle shelled walnuts unless such walnuts are equal to or better than the requirements of the U.S. Commercial grade as defined in the then effective United States Standards for Shelled Walnuts (Juglans regia) and the minimum size shall be pieces not more than 5 percent of which will pass through a round opening \6/64\ inch in diameter. This minimum standard may be modified by the Secretary on the basis of a Board recommendation or other information. (c) Effective period. The minimum standards established pursuant to paragraphs (a) and (b) of this section and the provisions of this part relating to the administration thereof, shall continue in effect irrespective of whether the season average price for walnuts is above the parity level specified in section 2(1) of the Act. (d) Additional grade, size or other quality regulation. The Board may recommend to the Secretary additional grade, size or other quality regulations, and may also recommend different regulations for different market destinations. If the Secretary finds on the basis of such recommendation or other information that such additional regulations would tend to effectuate the declared policy of the Act, he or she shall establish such regulations. (e) Minimum requirements for reserve. The Board, with the approval of the Secretary, may specify the minimum kernel content and related requirements for any lot of walnuts acceptable for disposition for credit against a reserve obligation: Provided, That reserve walnuts exported must meet the requirements of paragraph (a) of this section if inshell, or paragraph (b) of this section if shelled. Proposal Number 12(b) 23. Revise Sec. 984.52 to read as follows: Sec. 984.52 Processing of shelled walnuts. (a) No handler shall slice, chop, grind, or in any manner change the form of shelled walnuts unless such walnuts have been certified as merchantable or unless such walnuts meet quality regulations established under Sec. 984.50(d) if such regulations are in effect. (b) Any lot of shelled walnuts which, upon inspection, fails to meet the minimum standard effective pursuant to Sec. 984.50 solely due to excess shriveling may be certified for processing provided that the total amount of shrivel does not exceed 20 percent, by weight, of the lot. All such walnuts must be reinspected after processing and shall be certified as merchantable if the processed material meets the effective minimum standard. The provisions of this paragraph may be modified by the Secretary, upon recommendation of the Board or other information. (c) The Board shall establish such procedures as are necessary to insure that all such walnuts are inspected prior to being placed into the current of commerce. Proposal Number 13 24. Revise Sec. 984.46 to read as follows: Sec. 984.46 Research and development. The Board, with the approval of the Secretary, may establish or provide for the establishment of production research, marketing research and development projects, and marketing promotion, including paid advertising, designed to assist, improve, or promote the marketing, distribution, and consumption or efficient production of walnuts. The expenses of such projects shall be paid from funds collected pursuant to Sec. 984.69 and Sec. 984.70. Proposal Number 14 25. Revise Sec. 984.21 to read as follows: Sec. 984.21 Handler inventory. Handler inventory as of any date means all walnuts, inshell or shelled (except those held in satisfaction of a reserve obligation), wherever located, then held by a handler or for his or her account. [[Page 20908]] 26. Revise Sec. 984.67 to read as follows: Sec. 984.67 Exemptions. (a) Exemption from volume regulation. Reserve percentages shall not apply to lots of merchantable inshell walnuts which are of jumbo size or larger as defined in the then effective United States Standards for Walnuts in the Shell, or to such quantities as the Board may, with the approval of the Secretary, prescribe. (b) Exemptions from assessments, quality, and volume regulations: (1) Sales by growers direct to consumers. Any walnut grower may handle walnuts of his or her own production free of the regulatory and assessment provisions of this part if he or she sells such walnuts in the area of production directly to consumers under the following types of exemptions. (i) At roadside stands and farmers' markets; (ii) In quantities not exceeding an aggregate of 500 pounds of inshell walnuts or 200 pounds of shelled walnuts during any marketing year (at locations other than those specified in (b)(i) of this section); and (iii) If shipped by parcel post or express in quantities not exceeding 10 pounds of inshell walnuts or 4 pounds of shelled walnuts to any one consumer in any one calendar day. (2) Green walnuts. Walnuts which are green and which are so immature that they cannot be used for drying and sale as dried walnuts may be handled without regard to the provisions of this part. (3) Noncompetitive outlets. Any person may handle walnuts, free of the provisions of this part, for use by charitable institutions, relief agencies, governmental agencies for school lunch programs, and diversion to animal feed or oil manufacture pursuant to an authorized governmental diversion program. (c) Rules and modifications. The Board may establish, with the approval of the Secretary, such rules, regulations and safeguards and such modifications as will promote the objectives of this subpart. 27. In addition to the Board's recommended changes set forth in Proposal Nos. 1 and 7, revise Sec. 984.48 (a)(2), (a)(4), and (a)(5) to read as follows: Sec. 984.48 Marketing estimates and recommendations. (a) * * * (1) * * * (2) Its estimate of the handler inventory on September 1 of inshell and shelled walnuts; (3) * * * (4) Its estimate of the trade demand for such marketing year for shelled and inshell walnuts, taking into consideration trade inventory, imports, prices, competing nut supplies, and other factors; (5) Its recommendation for desirable handler inventory of inshell and shelled walnuts on August 31 of each marketing year; * * * * * 28. Revise Sec. 984.71 to read as follows: Sec. 984.71 Reports of handler inventory. Each handler shall submit to the Board in such form and on such dates as the Board may prescribe, reports showing his or her inventory of inshell and shelled walnuts. Proposal Number 15(a) 29. Revise Sec. 984.59 to read as follows: Sec. 984.59 Interhandler transfers. For the purposes of this part, transfer means the sale of inshell and shelled walnuts within the area of production by one handler to another. The receiving handler shall comply with the regulations made effective pursuant to this part. The Board, with the approval of the Secretary, may establish methods and procedures, including necessary reports, for such transfers. Proposal Number 15(b) 30. Revise Sec. 984.73 to read as follows: Sec. 984.73 Reports of walnut receipts. Each handler shall file such reports of his or her walnut receipts from growers, handlers, or others in such form and at such times as may be requested by the Board with the approval of the Secretary. Proposal Number 16 31. Revise Sec. 984.22 to read as follows: Sec. 984.22 Trade demand. (a) Inshell. The quantity of merchantable inshell walnuts that the trade will acquire from all handlers during a marketing year for distribution in the United States and its territories. (b) Shelled. The quantity of merchantable shelled walnuts that the trade will acquire from all handlers during a marketing year for distribution in the United States and its territories. Proposal Number 17 32. Add a new Sec. 984.91 to read as follows: Sec. 984.91 Relationship with the California Walnut Commission. In conducting Board activities and other objectives under this part, the Board may deliberate, consult, cooperate and exchange information with the California Walnut Commission, whose activities compliment those of the Board. Any sharing of information gathered under this subpart shall be kept confidential in accordance with provisions under section 10(i) of the Act. Proposals submitted by USDA are as follows: Proposal Number 18 33. Revise Sec. 984.36 to read as follows: Sec. 984.36 Term of office. The term of office of Board members, and their alternates shall be for a period of two years ending on June 30 of odd-numbered years, but they shall serve until their respective successors are selected and have qualified. Board members may serve up to four consecutive, two- year terms of office. In no event shall any member serve more than eight consecutive years on the Board. For purposes of determining when a Board member has served four consecutive terms, the accrual of terms shall begin following any period of at least twelve consecutive months out of office. The limitation on tenure shall not apply to alternates. Proposal Number 19 34. Amend Sec. 984.89 by redesignating the current paragraph (b)(4) as (b)(5), and adding a new paragraph (b)(4) to read as follows: Sec. 984.89 Effective time and termination. (a) * * * (b) * * * (1) * * * (2) * * * (3) * * * (4) Within six years of the effective date of this part the Secretary shall conduct a referendum to ascertain whether continuance of this part is favored by producers. Subsequent referenda to ascertain continuance shall be conducted every six years thereafter. The Secretary may terminate the provisions of this part at the end of any fiscal period in which the Secretary has found that continuance of this part is not favored by a two thirds (2/3) majority of voting producers, or a two thirds (2/3) majority of volume represented thereby, who, during a representative period determined by the Secretary, have been engaged in the production for market of walnuts in the production area. Such termination shall be announced on or before the end of the production year. * * * * * [[Page 20909]] Proposal Number 20 Make such changes as may be necessary to the order to conform with any amendment thereto that may result from the hearing. Dated: April 18, 2006. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E6-6071 Filed 4-21-06; 8:45 am] BILLING CODE 3410-02-P

usgpo

2024-10-08T14:08:33.324346

FR

FR-2006-04-24/E6-6102

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20909-20915] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6102] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF ENERGY 10 CFR Part 626 RIN 1901-AB16 Procedures for the Acquisition of Petroleum for the Strategic Petroleum Reserve AGENCY: Office of Petroleum Reserves, Department of Energy. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Energy Policy Act of 2005 directs the Secretary of Energy to develop procedures for the acquisition of petroleum for the Strategic Petroleum Reserve (SPR) in appropriate circumstances. The Department of Energy (DOE) is today proposing procedures for the acquisition of petroleum for the SPR, including acquisition by direct purchase and transfer of royalty oil from the Department of the Interior. The proposed rule also has provisions concerning the deferral of scheduled deliveries of petroleum for the SPR. DATES: Comments are due on May 24, 2006. ADDRESSES: You may submit comments, identified by RIN Number 1901-AB16 by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. E-Mail: [email protected]. Include RIN Number 1901- AB16 in the subject line of the message. Mail: Office of Petroleum Reserves, FE-40, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585. You may obtain electronic copies of this notice of proposed rulemaking and review comments received by DOE at the following Web sites: http://www.fe.doe.gov/programs/reserves and http://www.spr.doe.gov. Those without Internet access may access this information by visiting the DOE Freedom of Information Reading Room, Rm. 1E-190, 1000 Independence Avenue SW., Washington, DC, (202) 586- 3142, between the hours of 9 a.m and 4 p.m., Monday to Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lynnette le Mat, Director, Operations and Readiness, Office of Petroleum Reserves, FE-43, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585, (202) 586- 4398. SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction A. Background B. Energy Policy Act of 2005 II. Proposed Acquisition Procedures A. Discussion of Acquisition Principles B. Vehicles for Petroleum Acquisition C. Description of the Proposed Rule III. Regulatory Review A. Executive Order 12866 B. National Environmental Policy Act C. Regulatory Flexibility Act D. Paperwork Reduction Act E. Unfunded Mandates Reform Act of 1995 F. Treasury and General Government Appropriations Act, 1999 G. Executive Order 13132 H. Executive Order 12988 I. Treasury and General Government Appropriations, 2001 I. Introduction A. Background The Strategic Petroleum Reserve was established pursuant to the Energy Policy and Conservation Act (EPCA) (42 U.S.C. 6201 et seq.) to store petroleum to diminish the impact on the United States of disruptions in petroleum supplies and to carry out the obligations of the United States under the International Energy Program. EPCA authorizes the storage of up to one billion barrels of petroleum and permits the Secretary of Energy to acquire petroleum for storage in the SPR by a variety of methods. Since its authorization, the Federal Government has created six crude oil storage sites and subsequently decommissioned two of the six. The SPR currently consists of underground storage caverns located in the four Government-owned sites. The locations are Bryan Mound and Big Hill in Texas and West Hackberry and Bayou Choctaw in Louisiana. These four storage locations have salt dome caverns with 727 million barrels of useable storage capacity. Over the last thirty years, the Government has acquired approximately 800 million barrels of petroleum for the SPR. Over 100 million barrels of oil have been withdrawn from the SPR for sale or exchange. The inventory reached its highest level of 700.7 million barrels in August 2005 before the drawdown, exchange and sale of 20.8 million barrels in the aftermath of Hurricane Katrina. Crude oil was initially acquired for the SPR by direct purchases on the open market. Through an Interagency Agreement, the Department of Defense served as DOE's agent to acquire crude oil using appropriated funds to attempt to meet a series of target fill rates specified by Congress. Petroleum was acquired through a combination of spot market purchases and term contracts, including a matching purchase and sale involving the Government's share of production from the Naval Petroleum Reserve in California. Except for various pauses occasioned by geopolitical events, e.g., Desert Storm, the Defense Fuel Supply Center (currently the Defense Energy Support Center) continued to function as DOE's acquisition agent for direct purchases through 1994, at which time funds from direct appropriations and receipts from sales in 1990 and 1991 were exhausted. In December 1981, DOE entered into the first of a series of four country-to-country contracts with Petroleos Mexicanos (PEMEX), the state-owned oil company of Mexico. These term contracts--under which deliveries of approximately 220 million barrels of petroleum were completed in 1990--employed commercial market terms and were priced according to a formula indexed to prices of globally-traded petroleum. In 1996, in a series of congressionally-mandated sales, an aggregate 28 million barrels of SPR inventory were sold to fund SPR programmatic requirements and for general deficit reduction purposes. Subsequently, pursuant to a 1999 Memorandum of Understanding (MOU) between the Department of the Interior (DOI) and DOE, DOE initiated a program to replace the 28 million barrels by the transfer to DOE of crude oil royalties collected in-kind on production from Federal leases in the Gulf of Mexico Outer Continental Shelf. Under this MOU, DOE contracted with commercial entities to receive the royalty oil at offshore production facilities and transfer it to the SPR, either directly or by exchange for other crude oil meeting SPR quality specifications. In 1998, in order to improve the efficiency of drawdown operations at the Bryan Mound site, DOE conducted a competition under the exchange authority in EPCA to trade crude oil of one type for another type of superior quality. Although this resulted in a net decrease in the number of barrels in inventory, the upgrade in oil quality maintained the value of the [[Page 20910]] Government's assets and enhanced emergency response capabilities. In the fall of 2000, again under the EPCA exchange authority, DOE conducted a time exchange of oil from the SPR. Through open competition, DOE entered into agreements with nine companies to exchange 30 million barrels of oil. Under these agreements, oil delivered to companies from SPR sites was to be repaid the following year with oil of comparable quality and quantity plus additional premium barrels paid as interest. In November 2001, the Administration announced it would extend the royalty-in-kind program to fill the SPR to a level of 700 million barrels. To accomplish this, a new MOU was signed with the Department of Interior and DOE issued a series of competitive solicitations for six-month terms, similar to those used to acquire the previous 28 million barrels. At various times since 1999, when the market moved into steep backwardation (prices for future barrels remained consistently low relative to near term prices), suppliers under both the time exchange and royalty-in-kind transfer programs requested that contractually scheduled deliveries to the SPR be delayed. DOE granted these deferral requests through individual negotiations for the future return of the originally scheduled barrels plus additional premium barrels. In addition, there have been periods when catastrophic events, most recently severe weather, have prompted requests for loans of oil from the SPR. These loans have been conducted as time exchanges in a manner similar to deferred deliveries, in that the loaned oil is returned plus additional barrels as interest. B. Energy Policy Act of 2005 The acquisition authority in section 160 of EPCA requires that the Secretary of Energy, to the greatest extent practicable, acquire petroleum products for the SPR in a manner consonant with the following objectives: Minimization of the cost of the SPR; Minimization of the Nation's vulnerability to a severe energy supply interruption; Minimization of the impact of such acquisition upon supply levels and market forces; and Encouragement of competition in the petroleum industry. (42 U.S.C. 6240). The recently enacted Energy Policy Act of 2005 (Pub. L. 109-58) generally directs the Secretary of Energy to acquire petroleum to fill the SPR to the one billion barrel capacity authorized by section 154(a) of EPCA (42 U.S.C. 6234(a)) as expeditiously as practicable, without incurring excessive cost or appreciably affecting the price of petroleum products to consumers. DOE estimates that the acquisition of the approximately 300 million barrel difference between the current and authorized SPR inventory would likely take approximately 15 years. The rate of acquisition depends on the availability of capacity to receive and hold the oil and by the availability of oil either through transfer from the Department of the Interior to DOE or through purchases, which will be affected by the availability of funds. In addition, section 301(e)(2) of the Energy Policy Act of 2005 amends EPCA by adding a new subsection (c) to section 160. Subsection (c) directs the Secretary of Energy to develop, with public notice and opportunity for comment, procedures consistent with the objectives of section 160 to acquire petroleum for the SPR. Such procedures must take into account the need to-- (1) Maximize overall domestic supply of crude oil (including quantities stored in private sector inventories); (2) Avoid incurring excessive cost or appreciably affecting the price of petroleum products to consumers; (3) Minimize the costs to the Department of the Interior and DOE in acquiring such petroleum products (including foregone revenues to the Treasury when petroleum products for the SPR are obtained through the royalty-in-kind program); (4) Protect national security; (5) Avoid adversely affecting current and futures prices, supplies, and inventories of oil; and (6) Address other factors that the Secretary determines to be appropriate. The Energy Policy Act of 2005 further provides that the procedures developed under section 160(c) shall include procedures and criteria for the review of requests for the deferrals of scheduled deliveries. Along with the direction to expand the SPR to one billion barrels, section 303 of the Energy Policy Act of 2005 requires the Secretary of Energy to complete a proceeding to select sites ``necessary to enable acquisition by the Secretary of the full authorized volume of the Strategic Petroleum Reserve.'' (42 U.S.C. 6201 note.) This activity is currently underway. Consistent with the principles set forth in EPCA and the objectives of the Energy Policy Act of 2005, DOE now proposes procedures for oil acquisition by direct purchase and by royalty oil transfers from the Department of the Interior. Additionally, the procedures address deferrals of deliveries. II. Proposed Acquisition Procedures A. Discussion of Acquisition Principles DOE will consider a wide range of factors consonant with the objectives set forth in section 160 (b) of EPCA and the new section 160 (c) added by the Energy Policy Act of 2005. Careful and deliberative consideration of these factors will occur prior to acquisition of petroleum for the SPR or deferral of scheduled deliveries. While the mission of the SPR is to provide energy security by storing substantial quantities of petroleum, the acquisition of petroleum to meet this long term objective must be conducted using the criteria set forth in EPCA, as amended by the Energy Policy Act of 2005. When acquiring petroleum, whether by purchase or royalty transfer, DOE will seek to balance the objectives of assuring adequate security and minimizing market stress. To this end, DOE will consider various factors that may be affecting market fundamentals, current and projected SPR and commercial receipt capabilities, and the geopolitical climate. Consistent with the SPR mission, however, energy security will be the overriding objective as long as it does not result in undue impact on markets. Whether acquiring by purchase or royalty transfer, DOE will seek to maximize the overall domestic supply of crude oil. Assuming the necessary authorizations and appropriations have been made, DOE decisions on crude oil acquisition will take into consideration the current level of the SPR and private inventories, national and regional import dependency, the outlook for international and domestic production levels, oil acquisition by other stockpiling entities, the added security value of the marginal barrel in storage, incipient disruptions of supply or refining capability, the level of market volatility, the demand and supply elasticity to price changes, logistics and economics of petroleum movement, and any other considerations that may be pertinent to the balance of petroleum supply and demand. More indirect considerations, such as monetary policy, the current and projected rate of economic growth, and impacts on specific domestic market segments, as well as foreign policy considerations may also be pertinent to near-term acquisition strategy. All of these factors are recognized as having an impact, at some level, on U.S. energy security. The timing of DOE entry into the market, its sustained presence, and the [[Page 20911]] quantities sought will all be sensitive to these factors. DOE will remain aware of the extent to which the SPR fill rate and prices paid for its own acquisitions will impact supply availability and prices for other market participants. DOE will strive to avoid incurring excessive cost or appreciably affecting the price of petroleum products to consumers by analyzing market activity for crude oil and related commodities and prices of oil for delivery in future months as well as the perceived availability of near term and forward supplies. For purchases or exchanges, DOE will ensure the use of commercially reasonable terms and conditions. B. Vehicles for Petroleum Acquisition DOE may acquire oil for the SPR through direct purchase, the transfer of royalty-in-kind oil, through deferrals and exchanges, or other means authorized in EPCA (42 U.S.C. 6239, 6240). In order to acquire oil, DOE may enter into agreements with other Federal agencies with relevant expertise and resources to acquire oil for the SPR consistent with the provisions of part 626. 1. Direct Purchases Use of the direct purchase method for oil acquisition is contingent on the availability of funds. If funds are made available, DOE proposes to provide public notice of its intent to issue a solicitation for the acquisition of crude oil. The quantity and quality of oil to be purchased would be identified in the solicitation. When acquiring by direct purchase, DOE would use competitive solicitations to assure that prices paid are fair and reasonable in a global market, and in line with contemporaneous commercial transactions for comparable quality crude oils. The use of open, continuous solicitations that allow entry into price and delivery negotiations would enable DOE to increase the rate of purchases if price volatility reduces prices below trend and offers the opportunity to reduce the average cost of oil acquisition. Under the proposed procedures, DOE also may decrease the rate of purchase if volatility or future price projections indicate a delay would result in better economy and less stress on seasonal markets. DOE's decision to enter the market, delay purchases or defer deliveries would follow the careful analysis of the effect of such a decision on current and futures prices, supplies and inventories of oil. 2. Royalty-in-Kind Transfers Oil acquisition by royalty-in-kind transfer is conducted in coordination with the Minerals Management Service of the Department of the Interior. The Department of the Interior is responsible for collecting royalties on production from leases on Federally-owned properties. The Federal Government receives royalties of a defined percentage of the amount or value of the oil produced from the leases. Under the royalty-in-kind acquisition method, the royalties are paid ``in kind'', in the oil itself, and transferred to the SPR. In most cases, the royalty oil is provided to private companies under exchange agreements. In turn, these companies are bound by contract to provide oil of suitable quality to the SPR. If the royalty oil is of suitable quality and transportation logistics are amenable, it may be directly transferred to the SPR. DOE expects this would be a small proportion of the total oil transferred. When using royalty production to fill the SPR, DOE would minimize the cost to the Department of the Interior and DOE through its analysis of royalty values, as well as a comparative analysis of the relative market values of crude oil offered in exchange. Both agencies will encourage the direct transfer of royalty oil to the SPR when in the Government's interest. 3. Deferrals Secretary of Energy may defer scheduled deliveries to the SPR for the purpose of obtaining additional crude oil. Under the proposed rule, DOE could defer scheduled crude oil deliveries to the SPR to a later date in exchange for a premium, which would be paid to DOE in oil. The precise amount of that premium would be negotiated with the contractor by a DOE contracting officer. The determination of an appropriate premium would take into consideration the length of deferral as well as prevailing market conditions. C. Description of the Proposed Rule This portion of the supplementary information discusses certain provisions of the proposed rule. Section 626.03 (Applicability) This section limits the applicability of these procedures to the acquisition of petroleum for the SPR through direct purchase or transfer of royalty-in-kind oil, as well as to deferrals of contractually scheduled deliveries. The procedures do not apply to the following transactions during which oil may be acquired: (1) Country- to-country oil purchases; (2) facility leases with payments in oil; and (3) contracts for oil not owned by the United States as provided for by section 171 of the Energy Policy and Conservation Act. These transactions generally are not conducted primarily for the acquisition of oil by DOE. Section 626.04 (General Acquisition Strategy) This proposed section addresses the indicators which will be reviewed by DOE for likely market impacts prior to acquisition of petroleum for the SPR. Section 626.05 (Notice of Acquisition) This section describes the contents of the acquisition solicitation and issuance activities. The proposed section also discusses the duration of the solicitation, definition of quality specifications, quantity determination, offer procedures and delivery. Section 626.06 (Acquiring Oil by Direct Purchase) This proposed section addresses in more detail the development of an acquisition strategy taking into account specific SPR quantitative and qualitative requirements. This proposed section also addresses the method by which solicitations are issued and offers evaluated. Section 626.07 (Royalty Transfer and Exchange) This proposed section describes how DOE, in coordination with the Department of the Interior, would proceed to fill the SPR with the Government's share of U.S. Gulf of Mexico offshore royalty production, either by direct transport to SPR facilities or through a competitive exchange with industry. Successful exchange offers generally would be those which provide the greatest value of exchange oil to the Government relative to the value of the royalty oil delivered to the contractor. Section 626.08 (Deferrals of Contractually Scheduled Deliveries) This proposed section addresses the conditions in which DOE would consider and the process by which it would delay deliveries scheduled under existing contracts to the mutual benefit of the Government and other market participants. III. Regulatory Review A. Executive Order 12866 Today's proposed rule has been determined to be a ``significant regulatory action'' under Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory [[Page 20912]] Affairs of the Office of Management and Budget. B. National Environmental Policy Act DOE has determined that this proposed rule is covered under the Categorical Exclusion found in the Department's National Environmental Policy Act regulations at paragraph A.6 of Appendix A to Subpart D, 10 CFR part 1021, which applies to rulemakings that are strictly procedural. Accordingly, neither an environmental assessment nor an environmental impact statement is required. C. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, ``Proper Consideration of Small Entities in Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel's Web site: http://www.gc.doe.gov. DOE has reviewed today's proposed procedures under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. These proposed procedures would not directly affect small businesses or other small entities. The proposed procedures would apply only to individuals who are engaged in the acquisition of petroleum products for the Strategic Petroleum Reserve. On the basis of the foregoing, DOE certifies that the proposed procedures, if implemented would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b). D. Paperwork Reduction Act This proposed rule would not impose any new collection of information subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. E. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. Subsection 101(5) of title I of that law defines a Federal intergovernmental mandate to include any regulation that would impose upon State, local, or tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments, in the aggregate, or to the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of that title requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate which may result in costs to State, local, or tribal governments, or to the private sector, of $100 million or more. Section 204 of that title requires each agency that proposes a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and tribal governments. These proposed procedures would not impose a Federal mandate on State, local or tribal governments. The proposed rule would not result in the expenditure by State, local, and tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995. F. Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well being. These proposed procedures apply only to Federal employees involved in the acquisition of petroleum products for the SPR. While some of these individuals may be members of a family, the proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. G. Executive Order 13132 Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132. H. Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, Civil Justice Reform, 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed [[Page 20913]] procedures meet the relevant standards of Executive Order 12988. I. Treasury and General Government Appropriations Act, 2001 The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's notice under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. List of Subjects in 10 CFR Part 626 Government contracts, Oil and gas reserves, Strategic and critical materials. Issued in Washington, DC, on April 6, 2006. Thomas D. Shope, Acting Assistant Secretary for Fossil Energy. For the reasons stated in the preamble, DOE hereby proposes to amend chapter II of title 10 of the Code of Federal Regulations by adding a new part 626 as set forth below: PART 626--PROCEDURES FOR ACQUISITION OF PETROLEUM FOR THE STRATEGIC PETROLEUM RESERVE Sec. 626.01 Purpose. 626.02 Definitions. 626.03 Applicability. 626.04 General Acquisition Strategy. 626.05 Acquisition Proce--General. 626.06 Acquiring Oil by Direct Purchase. 626.07 Royalty Transfer and Exchange. 626.08 Deferrals of Contractually Scheduled Deliveries. Authority: 42 U.S.C. 6240(c); 42 U.S.C. 7101, et seq. Sec. 626.01 Purpose. This part establishes the procedures for acquiring petroleum for, and deferring contractually scheduled deliveries to, the Strategic Petroleum Reserve. Sec. 626.02 Definitions. Backwardation means a market situation in which prices are progressively lower in succeeding delivery months than in earlier months. Contango means a market situation in which prices are progressively higher in the succeeding delivery months than in earlier months. Contract means the agreement under which DOE acquires SPR petroleum, consisting of the solicitation, the contract form signed by both parties, the successful offer, and any subsequent modifications, including those granting requests for deferrals. Contracting Officer means the person executing acquisition contracts on behalf of the Government, including the authorized representative of a Contracting Officer acting within the limits of his or her authority. DEAR means the Department of Energy Acquisition Regulation. Deferral means a process whereby petroleum scheduled for delivery to the SPR in a specific contract period is rescheduled for later delivery, outside of that period and encompasses the future delivery of the originally scheduled quantity plus an in-kind premium. DOE means the Department of Energy. Exchange means a process whereby petroleum owned by or due to the SPR is provided to a person or contractor in return for petroleum of comparable quality plus a premium quantity of petroleum delivered to the SPR in the future, or when SPR petroleum is traded for petroleum of a different quality for operational reasons based on the relative values of the quantities traded. FAR means the Federal Acquisition Regulation. Government means the United States Government. International Energy Program means the program established by the Agreement on an International Energy Program, signed by the United States on November 18, 1974, including any subsequent amendments and additions to that Agreement. OPR means the Office of Petroleum Reserves within the DOE Office of Fossil Energy whose responsibilities include the operation of the Strategic Petroleum Reserve. Petroleum means crude oil, residual fuel oil, or any refined product (including any natural gas liquid, and any natural gas liquid product) owned, or contracted for, by DOE and in storage in any permanent SPR facility, or temporarily stored in other storage facilities. Secretary means the Secretary of Energy. Strategic Petroleum Reserve or SPR means the DOE program established by Title I, Part B, of the Energy Policy and Conservation Act, 42 U.S.C. 6201 et seq. Sec. 626.03 Applicability. The procedures in this part apply to the acquisition of petroleum by DOE for the Strategic Petroleum Reserve through direct purchase or transfer of royalty-in-kind oil, as well as to deferrals of contractually scheduled deliveries. Sec. 626.04 General acquisition strategy. (a) Criteria for commencing acquisition. To reduce the potential for negative impacts from market participation, DOE shall review the following factors prior to commencing acquisition of petroleum for the SPR: (1) The current inventory of the SPR; (2) The current level of private inventories; (3) Days of net import protection; (4) Current price levels for crude oil and related commodities; (5) The outlook for international and domestic production levels; (6) Existing or potential disruptions in supply or refining capability; (7) The level of market volatility; (8) Futures market price differentials for crude oil and related commodities; and (9) Any other factor the consideration of which the Secretary deems to be necessary or appropriate. (b) Review of rate of acquisition. DOE shall review the appropriate rate of oil acquisition each time an open market acquisition has been suspended for more than three months, and every six months in the case of ongoing or suspended royalty-in-kind transfers. (c) Acquisition through other Federal agencies. DOE may enter into arrangements with another Federal agency for that agency to acquire oil for the SPR on behalf of DOE. Sec. 626.05 Acquisition procedures--general. (a) Notice of acquisition. (1) Except when DOE has determined there is good cause to do otherwise, DOE shall provide advance public notice of its intent to acquire petroleum for the SPR. The notice of acquisition is usually in the form of a solicitation. DOE shall state in the notice of acquisition the general terms and details of DOE's crude oil acquisition and, to the extent feasible, shall inform the public of its overall fill goals, so that they may be factored into market participants' plans and activities. (2) The notice of acquisition generally states: (i) The method of acquisition to be employed; (ii) The time that the solicitations will be open; (iii) The quantity of oil that is sought; (iv) The minimum crude oil quality requirements; (v) The acceptable delivery locations; and (vi) The necessary instructions for the offer process. (b) Method of acquisition. [[Page 20914]] (1) DOE shall define the method of crude oil acquisition, direct purchase or royalty-in-kind transfer and exchange, in the notice of acquisition. (2) DOE shall determine the method of crude oil acquisition after taking into account the availability of appropriated funds, current market conditions, the availability of oil from the Department of the Interior, and other considerations DOE deems to be relevant. (c) Solicitation. (1) To secure the economic benefit and security of a diversified base of potential suppliers of petroleum to the SPR, DOE shall maintain a listing, developed through on-line registration and personal contact, of interested suppliers. Upon the issuance of a solicitation, DOE shall notify potential suppliers via their registered e-mail addresses. (2) DOE shall make the solicitation publicly available on the Web sites of the DOE Office of Fossil Energy http://www.fe.doe.gov/programs/reserves and the OPR http://www.spr.doe.gov. (d) Timing and duration of solicitation. (1) DOE shall determine crude oil requirements on nominal six-month cycles, and shall review and update these requirements prior to each solicitation cycle. (2) DOE may terminate all solicitations and contracts pertaining to the acquisition of crude oil at the convenience of the Government, and in such event shall not be responsible for any costs incurred by suppliers, other than for oil delivered to the SPR. (e) Quality. (1) DOE shall define minimum crude oil quality specifications for the SPR. DOE shall include such specifications in acquisition solicitations, and shall make them available on the Web sites of the DOE Office of Fossil Energy http://www.fe.doe.gov/programs/reserves and the OPR http://www.spr.doe.gov. (2) DOE shall periodically review the quality specifications to ensure, to the greatest extent practicable, the crude oil mix in storage matches the demand of the United States refining system. (f) Quantity. In determining the quantities of oil to be delivered to the SPR, DOE shall: (1) Take into consideration market conditions and the availability of transportation systems; and (2) Seek to avoid adversely affecting other market participants or crude oil market fundamentals. (g) Offer and evaluation procedures. (1) Each solicitation shall provide necessary instructions on offer format and submission procedures. The details of the offer, evaluation and award procedures may vary depending on the method of acquisition. (2) DOE shall use relative crude values and time differentials to the maximum extent practicable to manage acquisition and delivery schedules to reduce acquisition costs. (3) DOE shall evaluate offers based on prevailing market prices of specific crude oils, and shall award contracts on a competitive basis. (4) Whether acquisition is by direct purchase or royalty transfer and exchange on a term contract basis, DOE shall use a price index to account for fluctuations in absolute and relative market prices at the time of delivery to reduce market risk to all parties throughout the contract term. (h) Scheduling and delivery. (1) Except as provided in paragraph (4) of this section, DOE shall accept offers for crude oil delivered to specified SPR storage sites via pipeline or as waterborne cargos delivered to the terminals serving those sites. (2) Except as provided in paragraph (4) of this section, DOE shall generally establish schedules that allow for evenly spaced deliveries of economically-sized marine and pipeline shipments within the constraints of SPR site and commercial facilities receipt capabilities. (3) DOE shall strive to maximize U.S. flag carrier utilization through the terms of its supply contracts. (4) DOE reserves the right to accept offers for other methods of delivery if, in DOE's sole judgment, market conditions and logistical constraints require such other methods. Sec. 626.06 Acquiring oil by direct purchase. (a) General. For the direct purchase of crude oil, DOE shall, through certified contracting officers, conduct crude oil acquisitions in accordance with the FAR and the DEAR. (b) Acquisition strategy. (1) DOE solicitations: (i) May be either continuously open or fixed for a period of time (usually no longer than 6 months); and (ii) May provide either for prompt delivery or for delivery at future dates. (2) DOE may alter the acquisition plan to take advantage of differentials in prices for different qualities of oil, based on a consideration of the availability of storage capacity in the SPR sites, the logistics of changing delivery streams, and the availability of ships, pipelines and terminals to move and receive the oil. (3) Based on the market analysis described in paragraph (d) of this section, DOE may suspend competition or reject offers on the basis of Government estimates that project substantially lower oil prices in the future than those contained in offers. If DOE determines there is a high probability that the cost to the Government can be reduced without significantly affecting national energy security goals, DOE may either contract for delivery at a future date or delay purchases to take advantage of projected future lower prices. Conversely, DOE may increase the rate of purchases if prices fall below recent price trends or futures markets present a significant contango and prices offer the opportunity to reduce the average cost of oil acquisitions in anticipation of higher prices. (4) Based on the market analysis described in paragraph (d) of this section, DOE may suspend the solicitation or refuse offers or decrease the rate of purchase if DOE determines acquisition will add significant upward pressure to prices either regionally or on a world-wide basis. DOE may consider recent price changes, private inventory levels, oil acquisition by other stockpiling entities, the outlook for world oil production, incipient disruptions of supply or refining capability, logistical problems for moving petroleum products, macroeconomic factors, and any other considerations that may be pertinent to the balance of petroleum supply and demand. (c) Fill requirements determination. DOE shall develop SPR fill requirements for each solicitation based on an assessment of national energy security goals, the availability of storage capacity, and the need for specific grades and quantities of crude oil. (d) Market analysis. (1) DOE shall establish a market value for each crude type to be acquired based on a market analysis at the time of contract award. (2) In conducting the market analysis, DOE may use prices on futures markets, spot markets, recent price movements, current and projected shipping rates, forecasts by the DOE Energy Information Administration, and any other analytic tools available to DOE to determine the most desirable purchase profile. (3) A market analysis supporting a suspension decision may consider recent price changes, private inventory levels, oil acquisition by other stockpiling entities, the outlook for world oil production, incipient disruptions of supply or refining capability, logistical problems for moving petroleum products, macroeconomic factors, and any other considerations that may be pertinent to [[Page 20915]] the balance of petroleum supply and demand. (e) Evaluation of offers. (1) DOE shall evaluate offers using: (i) The criteria and requirements stated in the solicitation; and (ii) The market analysis under paragraph (d) of this section. (2) DOE shall require financial guarantees from contractors. Sec. 626.07 Royalty transfer and exchange. (a) General. DOE shall conduct royalty transfers pursuant to an agreement between DOE and the Department of the Interior for the transfer of royalty oil. (b) Acquisition strategy. (1) DOE and the Department of the Interior shall select a royalty volume from specified leases for transfer usually over six-month periods, beginning April 1 and October 1. (2) If logistics and crude oil quality are compatible with SPR receipt capabilities and requirements respectively, DOE may take the royalty oil directly from the Department of the Interior and place it in SPR storage sites. Otherwise, DOE may competitively solicit suppliers to deliver oil of comparable value to the SPR in exchange for the receipt of royalty-in-kind oil. (3) If, based on the market analysis described in paragraph (d) of this section, DOE determines there is a high probability that the cost to the Government can be reduced without significantly affecting national energy security goals, DOE may contract for delivery at a future date in expectation of lower prices and a higher quantity of oil in exchange. Conversely, it may schedule deliveries at an earlier date under the contract in anticipation of higher prices at later dates. (4) Based on the market analysis in paragraph (d) of this section, DOE may, after consultation with the Department of the Interior, suspend the transfer of royalty oil to DOE if it appears the added demand for oil will add significant upward pressure to prices either regionally or on a world-wide basis. (c) Fill requirements determination. DOE shall develop SPR fill requirements for each solicitation based on an assessment of national energy security goals, the availability of royalty oil and storage capacity, and need for specific grades and quantities of crude oil. (d) Market analysis. (1) DOE may use prices on futures markets, spot markets, recent price movements, current and projected shipping rates, forecasts by the DOE Energy Information Administration, and any other analytic tools to determine the most desirable acquisition profile. (2) A market analysis supporting a suspension decision may consider recent price changes, private inventory levels, oil acquisition by other stockpiling entities, the outlook for world oil production, incipient disruptions of supply or refining capability, logistical problems for moving petroleum products, macroeconomic factors, and any other considerations that may be pertinent to the balance of petroleum supply and demand. (e) Evaluation of royalty exchange offers. (1) DOE shall evaluate offers using: (i) The criteria and requirements stated in the solicitation; and (ii) The market analysis under paragraph (d) of this section. (2) DOE shall require financial guarantees from contractors prior to evaluation. Sec. 626.08 Deferrals of contractually scheduled deliveries. (a) General. (1) DOE prefers to take deliveries of petroleum for the SPR at times scheduled under applicable contracts. However, in the event the market is distorted by disruption to supply or other factors, DOE may defer scheduled deliveries or request or entertain deferral requests from contractors. (2) A contractor seeking to defer scheduled deliveries of oil to the SPR may submit a deferral request to DOE. (b) Deferral criteria. DOE shall only grant a deferral request for negotiation if the Government can increase the volume of oil in the SPR and, if DOE determines, based on DOE's deferral analysis, that at least one of the following conditions exists: (1) The Government can reduce the cost of its oil acquisition per barrel and increase the volume of oil being delivered to the SPR by means of the premium barrels required by the deferral process. (2) The Government anticipates private inventories are approaching a point where unscheduled outages may occur. (3) There is evidence that refineries are reducing their run rates for lack of feedstock. (4) There is an unanticipated disruption to crude oil supply. (c) Negotiating terms. (1) If DOE decides to negotiate a deferral of deliveries, DOE shall estimate the market value of the deferral and establish a strategy for negotiating with suppliers the minimum percentage of the market value to be taken by the Government. (2) DOE shall only agree to amend the contract if the negotiation results in an agreement to give the Government a fair and reasonable share of the market value. [FR Doc. E6-6102 Filed 4-21-06; 8:45 am] BILLING CODE 6450-01-P

usgpo

2024-10-08T14:08:33.356854

FR

FR-2006-04-24/E6-6054

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20915-20919] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6054] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-23578; Directorate Identifier 2006-CE-01-AD] RIN 2120-AA64 Airworthiness Directives; Mitsubishi Heavy Industries MU-2B Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); Reopening of the comment period. ----------------------------------------------------------------------- SUMMARY: The FAA proposes to revise an earlier proposed airworthiness directive (AD) that applies to all Mitsubishi Heavy Industries MU-2B series airplanes. The earlier NPRM would have required you to do the following: Remove and visually inspect the wing attach barrel nuts, bolts, and retainers for cracks, corrosion, and fractures; replace any cracked, corroded, or fractured parts; inspect reusable wing attach barrel nuts and bolts for deformation and irregularities in the threads; replace any deformed or irregular parts; and install new or reusable parts and torque to the correct value. The earlier NPRM resulted from a recent safety evaluation that used a data-driven approach to evaluate the design, operation, and maintenance of the MU- 2B series airplanes in order to determine their safety and define what steps, if any, are necessary for their safe operation. This proposed AD would retain the actions from the earlier NPRM, add airplanes to the applicability, revise the serial numbers of the affected airplanes, and update the manufacturer's contact information. This proposed AD results from the manufacturer revising the service information to include two additional airplane models. Since these actions impose an additional burden over that proposed in the NPRM, we are reopening the comment period to allow [[Page 20916]] the public the chance to comment on these additional actions. DATES: We must receive comments on this proposed AD by May 25, 2006. ADDRESSES: Use one of the following addresses to comment on this proposed AD: DOT Docket Web site: Go to http://dms.dot.gov and follow the instructions for sending your comments electronically. Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically. Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. Fax: (202) 493-2251. Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Mitsubishi Heavy Industries America, Inc., 4951 Airport Parkway, Suite 800, Addison, Texas 95001; telephone: (972) 934-5480; fax: (972) 934- 5488, or Turbine Aircraft Services, Inc., 4550 Jimmy Doolittle Drive, Addison, Texas 75001; telephone: (972) 248-3108; facsimile: (972) 248- 3321. FOR FURTHER INFORMATION CONTACT: Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone: (210) 308-3365; facsimile: (210) 308-3370. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed airworthiness directive (AD). Send your comments to an address listed under the ADDRESSES section. Include the docket number, ``FAA-2006-23578; Directorate Identifier 2006-CE-01- AD'' at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion Recent accidents and the service history of the Mitsubishi Heavy Industries (MHI) MU-2B series airplanes prompted the Federal Aviation Administration (FAA) to conduct an MU-2B Safety Evaluation. This evaluation used a data-driven approach to evaluate the design, operation, and maintenance of MU-2B series airplanes in order to determine their safety and define what steps, if any, are necessary for their safe operation. The safety evaluation provided an in-depth review and analysis of MU-2B incidents, accidents, safety data, pilot training requirements, engine reliability, and commercial operations. In conducting this evaluation, the team employed new analysis tools that provided a much more detailed root cause analysis of the MU-2B problems than was previously possible. Part of that evaluation was to identify unsafe conditions that exist or could develop on the affected type design airplanes. One of these conditions is the discovery of the right wing upper forward and lower forward barrel nuts found cracked during routine maintenance on one of the affected airplanes. The manufacturer conducted additional investigations of the wing attach barrel nuts on other affected airplanes. The result of this investigation revealed no other cracked barrel nuts. However, it was discovered that several airplanes had over-torqued barrel nuts, which could result in cracking. This condition, if not detected and corrected, could result in failure of the wing barrel nuts and/or associated wing attachment hardware. This failure could lead to in-flight separation of the outer wing from the center wing section and result in loss of controlled flight. We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all MHI MU-2B series airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on January 25, 2006 (71 FR 4072). The NPRM proposed to require you to do the following: Remove and visually inspect the wing attach barrel nuts, bolts, and retainers for cracks, corrosion, and fractures; Replace any cracked, corroded, or fractured wing attach barrel nuts, bolts, and retainers with new parts; Inspect reusable barrel nuts and bolts for deformation and irregularities in the threads; Replace any deformed or irregular wing attach barrel nuts or bolts with new parts; and Install new or reusable parts and torque to the correct value. Comments The FAA encouraged interested persons to participate in developing this amendment. The following presents the comments received on the proposal and FAA's response to each comment: Comment Issue No. 1: Incorporate Revised Service Bulletin The manufacturer revised the MU-2 Service Bulletin referenced as FAA T.C.: No. 103/57-004, dated August 2, 2004, to add two airplane models to the effectivity. The change in the model effectivity accurately reflects the airplanes for that service bulletin. The manufacturer requests the revised service bulletin, MU-2 Service Bulletin referenced as FAA T.C.: No. 103/57-004A, dated March 10, 2006, be incorporated into the NPRM. We agree with the commenter and will incorporate the revised service bulletin into the supplemental NPRM. Comment Issue No. 2: Revise the Manufacturer Contact Information The manufacturer requests that we revise the manufacturer contact information from Mitsubishi Heavy Industries in Nagoya, Japan, to Mitsubishi Heavy Industries America, Inc. in Addison Texas. We agree with the commenter and will incorporate the change into the supplemental NPRM. Comment Issue No. 3: Revise the Serial Numbers of the Affected Airplanes The manufacturer requests that we revise the serial numbers of the affected airplanes based on additional information submitted for clarification. We agree with the commenter and will incorporate the change into the supplemental NPRM. Comment Issue No. 4 The manufacturer requests that we revise the proposed requirement in the NPRM for ``replacing any bolts or barrel nuts with deformation or irregularities in the threads'' to include a ``or that do not meet the minimum breakaway torque check.'' We agree with the commenter and will incorporate the change into the supplemental NPRM. Events That Caused FAA To Issue a Supplemental NPRM The manufacturer revised the service information to include two additional airplane models. [[Page 20917]] Relevant Service Information We have reviewed Mitsubishi Heavy Industries, Ltd. MU-2 Service Bulletin referenced as JCAB T.C.: No. 241, dated July 14, 2004, and MU- 2 Service Bulletin referenced as FAA T.C.: No. 103/57-004A, dated March 10, 2006. These service bulletins describe procedures for: Removing and inspecting the wing attach barrel nuts and retainer for cracks, corrosion, and fractures; Replacing any wing attach barrel nuts and retainer with cracks, corrosion, or fractures; Inspecting reusable wing attach barrel nuts and bolts for deformation or irregularities in the threads; Checking the minimum breakaway torque of the wing attach barrel nuts; Replacing any bolts or wing attach barrel nuts with deformation or irregularities in the threads or that do not meet the minimum breakaway torque check; and Reinstalling the wing attach barrel nuts and hardware to the correct torque value. Foreign Airworthiness Authority Information The MU-2B series airplane was initially certificated in 1965 and again in 1976 under two separate type certificates (TC) that consist of basically the same type design. Japan is the State of Design for TC No. A2PC, and the United States is the State of Design for TC No. A10SW. The affected models are as follows (where models are duplicated, specific serial numbers are specified in the individual TCs): ------------------------------------------------------------------------ Type certificate Affected models ------------------------------------------------------------------------ A10SW......................... MU-2B-25, MU-2B-26, MU-2B-26A, MU-2B-35, MU-2B-36, MU-2B-36A, MU-2B-40, and MU- 2B-60. A2PC.......................... MU-2B, MU-2B-10, MU-2B-15, MU-2B-20, MU- 2B-25, MU-2B-26, MU-2B-30, MU-2B-35, and MU-2B-36. ------------------------------------------------------------------------ The Japan Civil Airworthiness Board (JCAB), which is the airworthiness authority for Japan, approved Mitsubishi Heavy Industries, Ltd. MU-2 Service Bulletin referenced as JCAB T.C.: No. 241, dated July 14, 2004, and MU-2 Service Bulletin referenced FAA T.C.: No. 103/57-004A, dated March 10, 2006, to ensure the continued airworthiness of these airplanes in Japan. FAA's Determination and Requirements of the Proposed AD After examining the circumstances and reviewing all available information related to the incidents described above, we have determined that: The unsafe condition referenced in this document exists or could develop on other Mitsubishi MU-2B series airplanes of the same type design that are on the U.S. registry; We should change the NPRM to incorporate the concerns addressed by the commenters and incorporate the revised service information; and We should take AD action to correct this unsafe condition. The Supplemental NPRM Adding airplanes to the applicability section of the NPRM goes beyond the scope of what was originally proposed in the NPRM. Therefore, we are reopening the comment period and allowing the public the chance to comment on these additional actions. This proposed AD would require you to do the following: Remove and visually inspect the wing attach barrel nuts, bolts, and retainers for cracks, corrosion, and fractures; Replace any cracked, corroded, or fractured wing attach barrel nuts, bolts, and retainers with new parts; Inspect reusable wing attach barrel nuts and bolts for deformation and irregularities in the threads; Check the minimum breakaway torque of the wing attach barrel nuts; Replace any deformed or irregular wing attach barrel nuts or bolts with new parts; and Install new or reusable parts and torque to the correct value. The FAA is committed to updating the aviation community of expected costs associated with the MU-2B series airplane safety evaluation conducted in 2005. As a result of that commitment, the accumulating expected costs of all ADs related to the MU-2B series airplane safety evaluation may be found in the Final Report section at the following Web site: http://www.faa.gov/aircraft/air_cert/design_approvals/small_airplanes/cos/mu2_foia_reading_library/. Costs of Compliance We estimate that this proposed AD affects 399 airplanes in the U.S. registry. We estimate the following costs to do the proposed inspection: ---------------------------------------------------------------------------------------------------------------- Total cost per Labor cost Parts cost airplane Total cost on U.S. operators ---------------------------------------------------------------------------------------------------------------- 12 workhours x $80 per hour = N/A................. $960 $960 x 399 = $383,040 $960. ---------------------------------------------------------------------------------------------------------------- We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need this replacement: ------------------------------------------------------------------------ Total cost per airplane to Labor cost Parts cost replace all 8 wing attach barrel nuts ------------------------------------------------------------------------ No additional labor cost. Any $60 for each barrel $480 necessary replacements will nut. There are 8 be done at the time of barrel nuts on each inspection. airplane. Possible total cost of: $60 x 8 = $480. ------------------------------------------------------------------------ [[Page 20918]] Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, ``General requirements.'' Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a ``significant regulatory action'' under Executive Order 12866; 2. Is not a ``significant rule'' under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at http://dms.dot.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39--AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. Sec. 39.13 [Amended] 2. The Federal Aviation Administration (FAA) amends Sec. 39.13 by adding the following new airworthiness directive (AD): Mitsubishi Heavy Industries, Ltd.: Docket No. FAA-2006-23578; Directorate Identifier 2006-CE-01-AD. Comments Due Date (a) The FAA must receive comments on this AD action by May 25, 2006. Affected ADs (b) None. Applicability (c) This AD affects the following Mitsubishi Heavy Industries, Ltd. airplane models and serial numbers that are certificated in any category: -------------------------------------------------------------------------------------------------------------------------------------------------------- Model Serial numbers -------------------------------------------------------------------------------------------------------------------------------------------------------- MU-2B-10............................... 101 through 120 (Except 102, 114, 115, and 118). MU-2B-15............................... 114, 115, and 118. MU-2B-20............................... 102, and 121 through 238. MU-2B-25............................... 239 through 318 (Except 313), and 313SA. MU-2B-26............................... 319 through 347 (Except 321), and 349SA. MU-2B-26A.............................. 321SA, 348SA, and 350SA through 394SA (Except 365SA). MU-2B-30............................... 502 through 547. MU-2B-35............................... 548 through 654 (Except 652), and 652SA. MU-2B-36............................... 501, and 655 through 696 (Except 661). MU-2B-36A.............................. 661SA, and 697SA through 730SA (Except 700SA). MU-2B-40............................... 365SA. MU-2B-60............................... 700SA. -------------------------------------------------------------------------------------------------------------------------------------------------------- Unsafe Condition (d) This AD results from a recent safety evaluation that used a data-driven approach to evaluate the design, operation, and maintenance of the MU-2B series airplanes in order to determine their safety and define what steps, if any, are necessary for their safe operation. Part of that evaluation was to identify unsafe conditions that exist or could develop on the affected type design airplanes. The actions specified in this AD are intended to detect and correct cracks, corrosion, fractures, and incorrect torque values in the wing attach barrel nuts, which could result in failure of the wing attach barrel nuts and/or associated wing attachment hardware. This failure could lead to in-flight separation of the outer wing from the center wing section and result in loss of controlled flight. Compliance (e) To address this problem, you must do the following, unless already done: ------------------------------------------------------------------------ Actions Compliance Procedures ------------------------------------------------------------------------ (1) Remove each wing attach Within the next Follow Mitsubishi barrel nut, bolt, and 200 hours time- Heavy Industries, retainer and do a detailed in-service (TIS) Ltd. MU-2 Service visual inspection for cracks, or 12 months Bulletins referenced corrosion, and fractures. after the as JCAB T.C.: No. effective date 241, dated July 14, of this AD, 2004, and FAA T.C.: whichever occurs No. 103/57-004A, first, unless dated March 10, already done. 2006, as applicable. [[Page 20919]] (2) If any signs of cracks, Before further Follow Mitsubishi corrosion, or fractures are flight after the Heavy Industries, found on any wing attach inspection Ltd. MU-2 Service barrel nut during the required in Bulletins referenced inspection required in paragraph (e)(1) as JCAB T.C.: No. paragraph (e)(1) of this AD, of this AD, 241, dated July 14, replace that wing attach unless already 2004, and FAA T.C.: barrel nut, bolt, and done. No. 103/57-004A, retainer with new parts and dated March 10, install to the correct torque 2006, as applicable, value. and the appropriate maintenance manual. (3) If no signs of cracks, Before further Follow Mitsubishi corrosion, or fractures are flight after the Heavy Industries, found during the inspection inspection Ltd. MU-2 Service required in paragraph (e)(1) required in Bulletins referenced of this AD, you may reuse the paragraph (e)(1) as JCAB T.C.: No. wing attach barrel nuts and of this AD, 241, dated July 14, bolts if they have been unless already 2004, and FAA T.C.: inspected and are free of done. No. 103/57-004A, deformation and dated March 10, irregularities in the threads 2006, as applicable, and meet the minimum and the appropriate breakaway torque requirement. maintenance manual. Reinstall inspected parts to the correct torque value. If the wing attach barrel nuts and bolts are not free of deformation and irregularities in the threads or do not meet the minimum breakaway torque requirement, install new parts to the correct torque value. ------------------------------------------------------------------------ Alternative Methods of Compliance (AMOCs) (f) The Manager, Fort Worth Airplane Certification Office, FAA, ATTN: Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone: (210) 308-3365; facsimile: (210) 308-3370, has the authority to approve alternative methods of compliance for this AD, if requested using the procedures found in 14 CFR 39.19. Related Information (g) Mitsubishi Heavy Industries, Ltd. MU-2 Service Bulletins JCAB T.C.: No. 241, dated July 14, 2004, and FAA T.C.: No. 103/57- 004A, dated March 10, 2006, pertain to the subject of this AD. To get copies of the documents referenced in this AD, contact Mitsubishi Heavy Industries America, Inc., 4951 Airport Parkway, Suite 800, Addison, Texas 95001; telephone: (972) 934-5480; fax: (972) 934-5488, or Turbine Aircraft Services, Inc., 4550 Jimmy Doolittle Drive, Addison, Texas 75001; telephone: (972) 248-3108; facsimile: (972) 248-3321. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at http://dms.dot.gov. The docket number is Docket No. FAA- 2006-23578; Directorate Identifier 2006-CE-01-AD. Issued in Kansas City, Missouri, on April 18, 2006. William J. Timberlake, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-6054 Filed 4-21-06; 8:45 am] BILLING CODE 4910-13-P

usgpo

2024-10-08T14:08:33.374942

FR

FR-2006-04-24/E6-6055

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20919-20922] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6055] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-24094; Directorate Identifier 2006-CE-20-AD] RIN 2120-AA64 Airworthiness Directives; Pilatus Aircraft Ltd. Models PC-6, PC- 6-H1, PC-6-H2, PC-6/350, PC-6/350-H1, PC-6/350-H2, PC-6/A, PC-6/A-H1, PC-6/A-H2, PC-6/B-H2, PC-6/B1-H2, PC-6/B2-H2, PC-6/B2-H4, PC-6/C-H2, and PC-6/C1-H2 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: We propose to revise Airworthiness Directive (AD) 68-17-03, which applies to all Pilatus Aircraft Ltd. PC-6 series airplanes. AD 68-17-03 currently requires you to repetitively inspect the rudder end rib for cracks and replace the rudder end rib with a modified rudder end rib when you find cracks. Installing the modified rudder end rib terminates the repetitive inspection requirements of AD 68-17-03. Under a licensing agreement with Pilatus, Fairchild Republic Company (also identified as Fairchild Industries, Fairchild Heli Porter, or Fairchild-Hiller Corporation) produced Model PC-6 series airplanes (manufacturer serial numbers 2001 through 2092) in the United States. AD 68-17-03 was intended to apply to all affected serial numbers of Model PC-6 series airplanes listed on Type Certificate Data Sheet (TCDS) No. 7A15, including the Fairchild-produced airplanes. Consequently, this proposed AD would clarify that all models of the PC- 6 airplane on TCDS No. 7A15 (including those models produced under the licensing agreement by Fairchild Republic Company) are included in the applicability. We are proposing this AD to detect and correct cracks in the rudder end rib, which could result in failure of the rudder end rib. This failure could result in loss of directional control. DATES: We must receive comments on this proposed AD by May 24, 2006. ADDRESSES: Use one of the following addresses to comment on this proposed AD: DOT Docket Web site: Go to http://dms.dot.gov and follow the instructions for sending your comments electronically. Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically. Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. Fax: (202) 493-2251. Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Pilatus Aircraft Ltd., Customer Liaison Manager, CH-6371 Stans, Switzerland; telephone: +41 41 619 63 19; facsimile: +41 41 619 6224. FOR FURTHER INFORMATION CONTACT: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; facsimile: (816) 329-4090. SUPPLEMENTARY INFORMATION: [[Page 20920]] Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, ``FAA- 2006-24094; Directorate Identifier 2006-CE-20-AD'' at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion Fatigue cracks found in the bottom nose rib on the rudders of certain Model PC-6 series airplanes prompted us to issue AD 68-17-03, Amendment 39-634. AD 68-17-03 currently requires the following on all Pilatus Aircraft Ltd. (Pilatus) Model PC-6 series airplanes: Repetitively inspecting the rudder end rib for cracks; Replacing the rudder end rib with a modified rudder end rib when you find cracks; and Terminating the repetitive inspections when the modified rudder end rib is installed. The Federal Office for Civil Aviation (FOCA), which is the airworthiness authority for Switzerland, notified the FAA of the need to revise AD 68-17-03 to address an unsafe condition that may exist or could develop on all Pilatus Model PC-6 series airplanes. The FOCA reports that clarification is needed to assure the applicability of AD 68-17-03 to all Model PC-6 series airplanes listed on Type Certificate Data Sheet (TCDS) No. 7A15, including those produced in the United States through a licensing agreement between Pilatus and Fairchild Republic Company (also identified as Fairchild Industries, Fairchild Heli Porter, or Fairchild-Hiller Corporation). This condition, if not detected and corrected, could result in failure of the rudder end rib. This failure could result in loss of directional control. Foreign Airworthiness Authority Information The FOCA recently issued Swiss AD Number HB 2005-289, effective date August 23, 2005, to ensure the continued airworthiness of all Model PC-6 series airplanes listed on TC No. 7A15, including those produced in the United States under a licensing agreement with Pilatus and Fairchild Republic Company (also identified as Fairchild Industries, Fairchild Heli Porter, or Fairchild-Hiller Corporation). The State of Design for Pilatus Model PC-6 series airplanes is Switzerland and the airplanes are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, the FOCA has kept us informed of the situation described above. FAA's Determination and Requirements of This Proposed AD We are proposing this AD because we have examined the FOCA's findings, evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design that are certificated for operation in the United States. This proposed AD would revise AD 68-17-03 with a new AD that would retain all actions currently required by AD 68-17-03 and would clarify the applicability of the affected airplanes by: Identifying those airplanes produced in the United States through a licensing agreement with the Fairchild Republic Company; and Listing all Pilatus Model PC-6 series airplanes on TCDS No. 7A15 in the applicability section. Costs of Compliance We estimate that this proposed AD would affect 49 airplanes in the U.S. registry. We estimate the following costs to do the proposed inspection: ---------------------------------------------------------------------------------------------------------------- Total cost per Labor cost Parts cost airplane Total cost on U.S. operators ---------------------------------------------------------------------------------------------------------------- 1 work hour x $80 per hour = $80 Not applicable..... $80 $80 x 49 = $3,920 ---------------------------------------------------------------------------------------------------------------- We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need this replacement: ------------------------------------------------------------------------ Total cost per Labor cost Parts cost airplane ------------------------------------------------------------------------ 9 work hours x $80 per hour = $720.. $821 $1,541 ------------------------------------------------------------------------ Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, ``General requirements.'' Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. [[Page 20921]] For the reasons discussed above, I certify that the proposed regulation: 1. Is not a ``significant regulatory action'' under Executive Order 12866; 2. Is not a ``significant rule'' under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket Where Can I Go To View the Docket Information? You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at http://dms.dot.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39--AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. Sec. 39.13 [Amended] 2. The FAA amends Sec. 39.13 by removing Airworthiness Directive (AD) 68-17-03, Amendment 39-634, and adding the following new AD: Pilatus Aircraft LTD: Docket No. FAA-2006-24094; Directorate Identifier 2006-CE-20-AD. Comments Due Date (a) We must receive comments on this proposed airworthiness directive (AD) action by May 24, 2006. Affected ADs (b) This AD revises AD 68-17-03, Amendment 39-634. Applicability (c) This AD affects the following airplane models, all manufacturer serial numbers (MSN), that are certificated in any category. Note: MSNs 2001 through 2092 were manufactured by Fairchild Republic Company (also identified as Fairchild Industries, Fairchild Heli Porter, and Fairchild-Hiller Corporation) in the United States under a license agreement and are covered by Type Certificate Data Sheet No. 7A15. (1) PC-6 (2) PC-6-H1 (3) PC-6-H2 (4) PC-6/350 (5) PC-6/350-H1 (6) PC-6/350-H2 (7) PC-6/A (8) PC-6/A-H1 (9) PC-6/A-H2 (10) PC-6/B-H2 (11) PC-6/B1-H2 (12) PC-6/B2-H2 (13) PC-6/B2-H4 (14) PC-6/C-H2 (15) PC-6/C1-H2 Unsafe Condition (d) This AD results from fatigue cracks found in the bottom nose rib on the rudders of certain PC-6 airplanes. We are issuing this AD to detect and correct cracks in the rudder end rib, which could result in failure of the rudder. This failure could lead to loss of rudder control. Compliance (e) To address this problem, you must do the following: ------------------------------------------------------------------------ Actions Compliance Procedures ------------------------------------------------------------------------ (1) With the aid of a mirror, Within the next 50 Follow Pilatus inspect the rudder end rib, hours time-in-service Service part number (P/N) 6302.27 (or (TIS) after August Bulletin No. FAA-approved equivalent P/N) 19, 1968 (the 80, dated April for crack(s). effective date of AD 1968. 68-17-03). Repetitively inspect thereafter at intervals not to exceed 50 hours TIS. (2) If you detect crack(s) Before further flight Follow Pilatus during any inspection after any inspection Service required in paragraph (e)(1) required in paragraph Bulletin No. of this AD, replace the (e)(1) of this AD in 80, dated April rudder end rib with a which you find 1968. modified rudder end rib cracks. Installing assembly, P/N 6302.26 Pos. 2, the modified rudder channel reinforcement, P/N end rib terminates 113.40.06.002, and torque the repetitive tube, P/N 113/40.06.003 (or inspection FAA-approved equivalent P/Ns). requirement in paragraph (e)(1) of this AD. (3) 14 CFR 21.303 allows for Not applicable........ Not applicable. replacement parts through parts manufacturer approval (PMA). The phrase ``or FAA- approved equivalent part number'' in this AD is intended to signify those parts that are PMA parts approved through identicality to the design of the part under the type certificate and replacement parts to correct the unsafe condition under PMA (other than identicality). If parts are installed that are identical to the unsafe parts, then the corrective actions of the AD affect these parts also. In addition, equivalent replacement parts to correct the unsafe condition under PMA (other than identicality) may also be installed provided they meet current airworthiness standards, which include those actions cited in this AD. (4) Installing the modified Not applicable........ Not applicable. rudder end rib assembly terminates the repetitive inspection requirement in paragraph (e)(1) of this AD. ------------------------------------------------------------------------ [[Page 20922]] Alternative Methods of Compliance (AMOCs) (f) The Manager, Standards Office, Attn: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; facsimile: (816) 329-4090, has the authority to approve alternative methods of compliance (AMOCs) for this AD, if requested using the procedures found in 14 CFR 39.19. (g) AMOCs approved for AD 68-17-03 are approved for this AD. Related Information (h) Swiss AD Number HB 2005-289, effective date August 23, 2005, also addresses the subject of this AD. To get copies of the documents referenced in this AD, contact Pilatus Aircraft Ltd., Customer Liaison Manager, CH-6371 Stans, Switzerland; telephone: +41 41 619 63 19; facsimile: +41 41 619 6224. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL- 401, Washington, DC, or on the Internet at http://dms.dot.gov. The docket number is Docket No. FAA-2006-24094; Directorate Identifier 2006-CE-20-AD. Issued in Kansas City, Missouri, on April 17, 2006. John R. Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-6055 Filed 4-21-06; 8:45 am] BILLING CODE 4910-13-P

usgpo

2024-10-08T14:08:33.408236

FR

FR-2006-04-24/06-3867

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20922-20925] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3867] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF HOMELAND SECURITY DEPARTMENT OF THE TREASURY Bureau of Customs and Border Protection 19 CFR Parts 24 and 111 RIN 1505-AB62 [USCBP-2006-0035] Fees for Certain Services AGENCY: Customs and Border Protection, Homeland Security; Treasury. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This document proposes to amend the rules dealing with customs financial and accounting procedures by revising the fees charged for certain customs inspectional services under section 13031 of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended. These revisions propose to exercise authority provided under recent changes in the pertinent statutory provisions. DATES: Written comments must be received by May 24, 2006. ADDRESSES: You may submit comments, identified by docket number, by one of the following methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments via docket number USCBP-2006-0035. Mail: Trade and Commercial Regulations Branch, Office of Regulations and Rulings, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229. Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the ``Public Participation'' heading of the SUPPLEMENTARY INFORMATION section of this document. Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected during the regular business days between the hours of 9 a.m. and 4:30 p.m. at the Office of Regulations and Rulings, Bureau of Customs and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 572- 8768. FOR FURTHER INFORMATION CONTACT: For information concerning user fee policy and rates, contact Mr. Jerry Petty, Director, Cost Management Division, 1300 Pennsylvania Avenue, NW., Room 4.5A, Washington, DC 20229. Telephone: (202) 344-1317. SUPPLEMENTARY INFORMATION: Public Participation Interested persons are invited to participate in this rule-making by submitting written data, views, or arguments on all aspects of the proposed rule. The Bureau of Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. If appropriate to a specific comment, the commenter should reference the specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Background CBP collects fees to pay for the costs incurred in providing customs services in connection with certain activities under the authority of section 13031 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), as amended, codified at section 19 U.S.C. 58c. On October 22, 2004, the President signed the American Jobs Creation Act of 2004 (Pub. L. 108-357). Section 892 of the American Jobs Creation Act amended 19 U.S.C. 58c to renew the fees provided under COBRA, which would have otherwise expired March 1, 2005, and to allow the Secretary of the Treasury to increase such fees by an amount not to exceed 10 percent in the period beginning fiscal year 2006 through the period for which fees are authorized by law. It is noted that the law specifically mentions the Secretary of the Treasury, even though CBP is now a component of the Department of Homeland Security. Regulations concerning user fees, among other customs revenue functions, were retained by the Secretary of the Treasury pursuant to Treasury Department Order No. 100-16. In accordance with the current statutory provisions, CBP is proposing to amend the regulations by increasing the fees for customs services provided in connection with (1) the arrival of certain commercial vessels, commercial trucks, railroad cars, private aircraft and private vessels, passengers aboard commercial aircraft and commercial vessels, and barges or other bulk carrier arrivals, (2) each item of dutiable mail for which a customs officer prepares documentation, and (3) annual customs brokers permits. CBP is proposing to increase the fees by the amounts authorized so that they more accurately reflect the actual costs of providing the services for which they are charged. None of the user fees being raised in this package have been adjusted since their implementation in 1986. However, the costs incurred by CBP in performing certain customs inspection services have continued to grow because of higher volumes, greater varieties of cargo and increased security concerns which require inspections of individuals and conveyances entering the United States. As a result, CBP currently collects COBRA fees covering only thirty-two percent of the costs incurred by the agency. With this proposed increase, we estimate COBRA fees will generate an additional $26 million annually. Approximately 84 percent of these fees come from individual travelers, which are [[Page 20923]] categorized as individual user fees. As such, the impact on business will be minimal. It must be noted that the proposed fee changes would only apply to customs inspection fees charged by CBP under COBRA and do not impact the administration of any other user fees charged by CBP. Certain user fees, by statute, have annual caps that were not included in the legislation authorizing these increases and, as such, the amount of the annual caps remain unchanged. Discussion of Changes Following is a summary of the user fees affected and a description of customs services each fee covers. Commercial Vessel User Fee (Vessel of 100 Net Tons or More) CBP inspects commercial vessels of 100 net tons or more arriving at ports of entry in the customs territory of the United States. Vessel owners or operators pay a user fee for each arrival, up to a calendar year maximum amount. The current CBP user fee for each commercial vessel arrival is $397 and a calendar year maximum of $5,955. The current fee became effective in 1985 and has not been adjusted prior to this rule. The user fee is proposed to be raised to $437 per arrival while retaining the maximum of $5,955 each calendar year. User Fees for Commercial Trucks CBP inspects commercial trucks arriving at all land ports in the customs territory of the United States. The United States Department of Agriculture (USDA) also assesses a commercial truck user fee for arrivals at certain land ports. Commercial truck owners or operators can elect to pay a per arrival fee or pay a fee to cover the entire calendar year. The annual payment covers an unlimited number of entries during the calendar year. Upon payment of the annual fee, which includes both CBP and USDA user fees, the truck owner or operator receives a transponder to place on the truck windshield. This indicates that both the CBP and USDA user fees for the truck have been paid for that calendar year. The current CBP commercial truck user fee is $5.00 for each arrival and $100 for the annual fee. The current fee became effective in 1985. This document proposes to raise the CBP user fee to $5.50 for each arrival and $100 for the calendar year fee. An electronic transponder recently replaced the paper decal formerly used. Questions about the transponder should be directed to ``Decal'' Inquiries, National Finance Center, (317) 298-1245. Railroad Car Passenger/Freight User Fee and Decal CBP inspects railroad cars, carrying passengers or commercial freight, arriving at land ports in the customs territory of the United States. However, CBP does not assess a fee on empty railroad cars. There is a calendar year maximum that applies to railroad cars and a decal may be purchased for the entire calendar year. The current user fee is $7.50 for the arrival of each railroad car carrying passengers or commercial freight and $100 for a decal that covers the calendar year. The current fee became effective in 1986. The fee is proposed to be raised to $8.25 for the arrival of each railroad car carrying passengers or commercial freight and to $100 for a decal for the calendar year. Private Aircraft and Private Vessel Decal Fees CBP inspects private aircraft and private vessels arriving in the customs territory of the United States. Owners and operators of both private aircraft and private vessels are required to purchase a decal each calendar year. Those parties currently pay $25 for all arrivals made during a calendar year by a private vessel or aircraft. The current fee became effective in 1985. This document proposes to raise the decal fee to $27.50 for all arrivals made during a calendar year by a private vessel or aircraft. User Fee Passenger Aboard a Commercial Aircraft CBP inspects commercial airline passengers arriving at airports in the customs territory of the United States. Millions of travelers pass through U.S. airports daily. Our overall goal, keeping in mind airport security, is a timely, seamless inspection process that is integrated with the clearance processes of other Federal agencies with inspection responsibilities. Our joint goal is to enhance security and improve enforcement and regulatory processes in order that international air passengers are cleared through the entire Federal inspection process as quickly as possible without jeopardizing our security requirements. Currently, the user fee for international airline passenger clearance is $5.00 per passenger. The fee is proposed to be raised to $5.50 per passenger. User Fee Passenger Aboard a Commercial Vessel (Non-Exempt) CBP inspects commercial vessel passengers arriving at ports in the customs territory of the United States. Our overall goal, keeping in mind port security, is a timely, seamless inspection process that is integrated with the clearance processes of other Federal agencies with inspection responsibilities. Our joint goal is to enhance security and improve enforcement and regulatory processes in order that commercial vessel passengers are cleared through the entire Federal inspection process as quickly as possible without jeopardizing our security requirements. Currently, the user fee for commercial vessel passenger clearance is $5.00 per passenger. The fee is proposed to be increased to $5.50 per passenger. Passenger Commercial Vessel User Fee (Canada, Mexico, Territory or Possession of the U.S., or Adjacent Island as Defined in 8 U.S.C. 1101(b)(5)) CBP inspects commercial vessel passengers arriving at ports in the customs territory of the United States from Canada, Mexico, territory or possession of the U.S., or adjacent island as defined in the aforementioned statute. Currently, the user fee for commercial vessel passenger processing relating to the above locations is $1.75 per passenger. The current fee became effective in 1999. The fee is proposed to be increased to $1.93 per passenger. Dutiable Mail Entries User Fee All international mail is subject to inspection by CBP; however, we assess a user fee only on packages and/or mail containing dutiable merchandise. Currently, the user fee for dutiable mail is $5.00 per item. The current fee became effective in 1985. The fee is proposed to be raised to $5.50 per item. Customs Broker Permits Brokers are required to pay an annual fee to maintain their license for customs purposes. The fees are applicable for each district permit and each national permit held by an individual, partnership, association, or corporation. Currently, the user fee for a broker permit is $125.00 per permit. The current fee became effective in 1985. The fee is proposed to be raised to $138.00 per permit. Barges and Other Bulk Carriers (From Canada or Mexico) CBP inspects barges and other bulk carriers from Canada and Mexico. Currently, the user fee for barge and [[Page 20924]] bulk carrier inspection is $100 per arrival and a calendar year maximum of $1,500. The current fee became effective in 1986. The fee is proposed to be raised to $110 per arrival and a calendar year maximum of $1,500. New Fee Structure Table 1 indicates the customs inspection user fees currently in effect and the proposed user fee rates. Table 1.--Summary of New Fee Rates ------------------------------------------------------------------------ Current fees/ Customs services annual cap Proposed fees ------------------------------------------------------------------------ Commercial Vessels................ $397.00/$5,955 $437.00/$5,955 Commercial Trucks................. $5.00/$100.00 $5.50/$100.00 Railroad Cars..................... $7.50/$100.00 $8.25/$100.00 Private Aircraft (Decal).......... $25.00 $27.50 Private Vessel (Decal)............ $25.00 $27.50 Commercial Aircraft Passenger..... $5.00 $5.50 Commercial Vessel Passenger (Non- $5.00 $5.50 Exempt).......................... Commercial Vessel Passenger....... $1.75 $1.93 Dutiable Mail..................... $5.00 $5.50 Broker Permit..................... $125.00 $138.00 Barges and other bulk carriers.... $100.00/$1,500 $110.00/$1,500 ------------------------------------------------------------------------ Standard for Setting Fees As noted above, Section 892 of the American Jobs Creation Act specifically gives the Secretary of the Treasury the authority to increase the COBRA fees by an amount not to exceed 10 percent in the period beginning fiscal year 2006 through the period for which fees are authorized by law. In addition, this provision requires that the amounts of fees charged (a) be reasonably related to the costs of providing customs services in connection with the activity or item for which the fee is charged, (b) may not exceed, in the aggregate, the amounts paid in that fiscal year for the costs incurred in providing customs services in connection with the activity or item for which the fee is charged, and (c) may not be collected except to the extent such fee will be expended to pay the costs incurred in providing customs services in connection with the activity or item for which the fee is charged. Accordingly, CBP has compared the amounts of user fees charged and the corresponding costs incurred in providing customs services in connection with the activity or item for which the fee is charged to ensure that the fees accurately reflect the actual costs incurred in providing each service. The fees are proposed to be increased by the amounts necessary to align them with the costs incurred by CBP in performing such services, subject to the 10 percent increase limit set by law. Table 2 shows the collections received and obligations incurred by CBP, in Fiscal Year 2004, in performing customs inspectional services. Table 2.--Summary of Fee Collections and Obligations ------------------------------------------------------------------------ Fiscal year 2004 Fiscal year 2004 Customs services collection by obligation by type type ------------------------------------------------------------------------ Commercial Vessels................ $18,915,411 $87,816,021 Commercial Trucks................. 18,576,419 224,047,446 Railroad Cars..................... 7,737,910 27,052,069 Private Aircraft.................. 755,390 32,908,142 Private Vessel.................... 729,678 5,934,279 Commercial Aircraft Passenger..... 236,939,037 494,340,066 Commercial Vessel Passenger (Non- 1,475,810 8,409,194 Exempt).......................... Commercial Vessel Passenger....... 12,431,417 13,276,642 Dutiable Mail..................... 344,510 49,038,824 Broker Permit..................... 494,170 10,858,344 Barges and Other Bulk Carriers*... 451,475 1,271,805 ------------------------------------------------------------------------ * Barge/Bulk Carrier obligations for Fiscal Year 2002. The Regulatory Flexibility Act Based on the supplementary information set forth in the preceding section and as illustrated in Table 2 above, this proposed rule generally affects individuals and large commercial carriers. The proposed increase, if adopted, would only increase fees by 10 percent over the amounts currently paid by users of the customs services for which each fee is charged. The American Jobs Creation Act specifically provides that the Secretary of the Treasury shall charge fees that are reasonably related to these activities. Accordingly, CBP certifies that this proposed rule will not have a significant impact on a substantial number of small entities because the majority of fees will come from individual travelers into the United States. Therefore, it is not subject to the analysis provisions of the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq.). Executive Order 12866 For the same reasons stated above, the proposed amendments do not meet the criteria for a ``significant regulatory action'' as specified in E.O. 12866. Accordingly, a regulatory impact analysis is not required thereunder. Signing Authority This document is being issued in accordance with Sec. 0.1(a) of Chapter I of Title 19, Code of Federal Regulations (19 CFR 0.1) pertaining to the exercise [[Page 20925]] of authority to approve regulations in 19 CFR chapter I. List of Subjects 19 CFR Part 24 Accounting, Claims, Customs duties and inspection, Fees, Financial and accounting procedures, Imports, Taxes, User fees. 19 CFR Part 111 Administrative practice and procedure, Brokers, Customs duties and inspection, Imports, Licensing. Proposed Amendments to the Regulations For the reasons stated in the preamble, parts 24 and 111 of the Customs and Border Protection Regulations (19 CFR parts 24 and 111) are proposed to be amended as follows: PART 24--CUSTOMS FINANCIAL AND ACCOUNTING PROCEDURE 1. The authority citation for part 24 continues to read in part as follows: Authority: 5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1505, 1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 9701; Public Law 107- 296, 116 Stat. 2135 (6 U.S.C. 1 et seq.). * * * * * Sec. 24.22 [Amended] 2. Amend Sec. 24.22 as follows: a. In paragraph (b)(1)(i), the figure ``$397'' is removed and, in its place, the figure ``$437'' is added. b. In paragraph (b)(2)(i), the figure ``$100'' is removed and, in its place, the figure ``$110'' is added. c. In paragraph (c)(1), the figure ``$5'' is removed and, in its place, the figure ``$5.50'' is added. d. In paragraph (d)(1), the figure ``$7.50'' is removed and, in its place, the figure ``$8.25'' is added. e. In paragraph (e)(1), the figure ``$25'' is removed and, in its place, the figure ``$27.50'' is added. f. In paragraph (e)(2), the figure ``$25'' is removed and, in its place, the figure ``$27.50'' is added. g. In paragraph (f), the figure ``$5'' is removed and, in its place, the figure ``$5.50'' is added. h. In paragraph (g)(1)(i), the figure ``$5'' is removed and, in its place, the figure ``$5.50'' is added. i. In paragraph (g)(1)(ii), the figure ``$1.75'' is removed and, in its place, the figure ``$1.93'' is added. j. In the table under paragraph (g)(2), in both columns headed ``Fee status for arrival from SL'', all the figures reading ``$1.75'' are removed and, in their place, the figure ``$1.93'' is added; and, in the column headed ``Fee status for arrival from other than SL'', all the figures reading ``$5'' are removed and, in their place, the figure ``$5.50'' is added. k. In paragraph (g)(5)(v), the figure ``$5'' is removed and, in its place, the figure ``$5.50'' is added; and, the figure ``$1.75'' is removed and, in its place, the figure ``$1.93'' is added. l. In paragraph (i)(7), the figure ``$5'' is removed and, in its place, the figure ``$5.50'' is added. m. In paragraph (i)(8), the figure ``$1.75'' is removed and, in its place, the figure ``$1.93'' is added. PART 111--CUSTOMS BROKERS 3. The authority citation for part 111 continues to read in part as follows: Authority: 19 U.S.C. 66, 1202, (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624, 1641. * * * * * Section 111.96 also issued under 19 U.S.C. 58c; 31 U.S.C. 9701. Sec. 111.19 [Amended] 4. Section 111.19 is amended in paragraph (c) by removing all the figures reading ``$125'' and adding in their place the figure ``$138''. Sec. 111.96 [Amended] 5. Section 111.96 is amended in paragraph (c) by removing all the figures reading ``$125'' and adding in their place the figure ``$138''. Approved: April 19, 2006. Deborah J. Spero, Acting Commissioner, Customs and Border Protection. Timothy E. Skud, Deputy Assistant Secretary of the Treasury. [FR Doc. 06-3867 Filed 4-21-06; 8:45 am] BILLING CODE 9111-14-P

usgpo

2024-10-08T14:08:33.430274

FR

FR-2006-04-24/E6-6025

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20925-20930] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6025] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 634 [FHWA Docket No. FHWA-2005-23200] RIN 2125-AF11 Worker Visibility AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of proposed rulemaking; request for comments. ----------------------------------------------------------------------- SUMMARY: The FHWA proposes to require the use of high-visibility safety apparel for workers who are working within the Federal-aid highway rights-of-way. This action would decrease the likelihood of fatalities or injuries to workers on foot who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction vehicles or equipment while working within the rights-of-ways of Federal-aid highways. This proposal is in response to section 1402 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 109-59, 119 Stat. 1227. DATES: Comments must be received on or before June 23, 2006. ADDRESSES: Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit electronically at http://dmses.dot.gov/submit or fax comments to (202) 493-2251. Alternatively, comments may be submitted via the Federal eRulemaking Portal at http://www.regulations.gov. All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination at the above address from 9 a.m. to 5 p.m. e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or print the acknowledgement page that appears after submitting comments electronically. Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). Persons making comments may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or may visit http://dms.dot.gov. FOR FURTHER INFORMATION CONTACT: Mr. Hari Kalla, Office of Transportation Operations, (202) 366-5915; or Mr. Raymond W. Cuprill, Office of the Chief Counsel, (202) 366-0791, U.S. Department of Transportation, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access and Filing You may submit or retrieve comments online through the Document Management System (DMS) at: http://dmses.dot.gov/submit. The DMS is available 24 hours each day, 365 days [[Page 20926]] each year. Electronic submission and retrieval help and guidelines are available under the help section of the Web site. An electronic copy of this document may also be downloaded from the Office of the Federal Register's home page at: http://www.archives.gov and the Government Printing Office's Web page at: http://www.access.gpo.gov/nara. Background There has been an increase in the amount of maintenance and reconstruction of the Nation's highways that is being accomplished in stages while traffic continues to use a portion of the street or highway for the purposes of travel. This has resulted in an increase in the exposure of workers on foot to high-speed traffic and a corresponding increase in the risk of injury or death for highway workers. Consequently, the number of workers injured and killed in highway work zones by vehicles has increased in recent years.\1\ In fact, each year, more than 100 workers are killed and over 20,000 are injured in the highway and street construction industry.\2\ --------------------------------------------------------------------------- \1\ DHHS (NIOSH) Publication No. 2001-128; Building Safer Highway Work Zones: Measures to Prevent Worker Injuries from Vehicles and Equipment. It is available at the following URL: http://www.cdc.gov/niosh/2001128.html. \2\ Id. --------------------------------------------------------------------------- Workers on foot within a work zone are also exposed to moving construction vehicles and equipment. According to the National Institute for Occupational Health, approximately half of the incidents where workers are struck by construction vehicles or equipment involve a vehicle or construction machine that is backing up. High visibility is one of the most prominent needs for workers who must perform tasks near moving vehicles or equipment. The need to be seen by those who drive or operate vehicles or equipment is recognized as a critical issue for worker safety. Workers must devote their attention to completing their assigned tasks and may not completely focus on the hazardous surroundings where they are working. It is imperative that the approaching motorist or equipment operator be able to see and recognize the worker. The sooner a worker in or near the path of travel is seen, the more time the operator has to avoid an incident. The FHWA recognized this fact and included language in the 2000 Edition of the Manual on Uniform Traffic Control Devices (MUTCD) \3\ to address this issue. Item B in the third paragraph of section 6D.02 of the MUTCD states: ``Worker Clothing--Workers close to the motor vehicle traveled way should wear bright, highly visible clothing.'' The word ``close'' was not defined. At that time, there was not a generally accepted definition or standard for high-visibility garment, so the acceptability of the clothing as well as the determination of when the garments were required was left up to the practitioner. --------------------------------------------------------------------------- \3\ Manual on Uniform Traffic Control Devices (MUTCD) is recognized as the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. It is available at http://www.mutcd.fhwa.dot.gov. --------------------------------------------------------------------------- This text in the 2000 MUTCD led some agencies to adopt policies and specifications requiring workers to wear high-visibility vests or shirts on their highway projects. The American National Standards Institute (ANSI) also released ANSI 107-1999,\4\ a standard for high visibility garments. --------------------------------------------------------------------------- \4\ ANSI 107-1999 is the nationally recognized standard for high-visibility garments developed in conjunction with the International Safety Equipment Association. Copies may be obtained at: http://www.safetyequipment.org/hivisstd.htm. --------------------------------------------------------------------------- Therefore, the FHWA recognized the need for a more specific recommendation and included language to that effect in the 2003 Edition of the MUTCD. Item B in the third paragraph of section 6D.03 included the following recommendation: ``Worker Safety Apparel--All workers exposed to the risks of moving roadway traffic or construction equipment should wear high-visibility safety apparel meeting the requirements of International Safety Equipment Association (ISEA) American National Standard for High-Visibility Safety Apparel, or equivalent revisions, and labeled as ANSI 107-1999 standard performance for Class 1, 2, or 3 risk exposure.'' As a result of the text in the 2003 MUTCD, many agencies have revised their policies to require their employees to wear ANSI Class 2 safety apparel at all times and they are revising their specifications to require contractors' employees to wear compliant safety apparel also. For example, the State of Maryland now requires all employees working on the right-of-way on their highways to wear ANSI Class 2 high visibility garments.\5\ The Illinois Department of Transportation also has implemented this requirement for all workers on highway projects through their contract specifications.\6\ --------------------------------------------------------------------------- \5\ Maryland's policy on the use of High visibility garments can be viewed at: http://www.sha.state.md.us/businesswithsha/bizStdsSpecs/desManualStdPub/publicationsonline/ohd/spi2001/hddifb/020-hvsap.doc. \6\ Illinois specifications can be viewed at: http://dot.state.il.us/desenv/pdf/80130.pdf. --------------------------------------------------------------------------- Although the FHWA made the text more specific in the 2003 MUTCD, it was still a recommendation rather than a requirement and some agencies have, therefore, not incorporated the use of high-visibility safety apparel into their policies and contract documents. Legislation Section 1402 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59; August 10, 2005) directed the Secretary of Transportation to, within 1 year, issue regulations to decrease the likelihood of worker injury and maintain the free flow of vehicular traffic by requiring workers whose duties place them on or in close proximity to a Federal- aid highway to wear high-visibility safety apparel. Therefore, the FHWA is proposing to add a new part to the Code of Federal Regulations (CFR) to implement this statutory requirement. The FHWA is proposing to add a new part to title 23 CFR that would require workers whose duties place them on or in close proximity to a Federal- aid highway to wear high-visibility safety apparel rather than propose to include such a requirement in the MUTCD. The FHWA is also considering whether to propose to include these requirements in the next edition of the MUTCD. Although the MUTCD is incorporated by reference at 23 CFR 655.601(a), it applies to all streets and highways open to the public which is much broader than the requirement in SAFETEA-LU which would apply only to workers whose duties place them on or in close proximity to Federal-aid highways. Section-by-Section Discussion of Proposed Rule The FHWA proposes to add a new part 634 in 23 CFR that would require workers whose duties place them on or in close proximity to Federal-aid highways to use high-visibility safety apparel and would provide guidance on its application. Currently, 23 CFR 635.108--Health and Safety contains requirements for provisions to be included in contracts for projects on Federal-aid highways that mandate the contractor comply with all Federal, State and local laws governing the safety and health of workers. It also requires contractors to provide safety devices and protective equipment for workers. The FHWA considered amending part 635 to include the high-visibility garments requirements; however, this Part is limited to contract procedures for Federal-aid projects, and would be of applicability only during the project phase. As a result, the FHWA decided [[Page 20927]] to propose adding the requirements in a new part in 23 CFR, which would be applicable during the entire life of all Federal-aid highways. The FHWA's intent in proposing this rule is to improve the visibility of all workers on or in close proximity to Federal-aid highways in all circumstances including, but not limited to, Federal-aid construction projects, maintenance and utility work, and traffic incident management. This proposed regulation would not preempt or limit the occupational safety and health jurisdiction of the Occupational Safety and Health Administration (OSHA) over the workers that would be covered by the proposed high-visibility garments requirements. The FHWA lacks direct enforcement or civil penalty authority to enforce the proposed requirements. Rather, pursuant to 23 CFR 1.36, compliance with this proposed regulation would be achieved by the withholding of payment to the State of Federal funds on account of Federal-aid highway projects, the withholding of approval of further Federal-aid projects in the State, and such other actions as the Federal Highway Administrator deems appropriate under the circumstances. Section 634.1 This section explains that the FHWA is taking this action to decrease the likelihood of fatalities or injuries to workers on foot who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction vehicles or equipment while working within the rights-of-ways of Federal-aid highways. Section 634.1 also notes that this rulemaking would apply only to workers who are working within the rights-of-ways of Federal-aid highways. Section 634.2 This section provides three definitions that are critical to the proper understanding of the rule. The definition of ``conspicuity'' is provided because this word is used in the definition of high-visibility safety apparel. The goal of this rule would be to make the worker more conspicuous in the work area so that drivers and equipment operators will notice the worker during both daytime and nighttime conditions despite all of the other distractions that exist in a typical temporary traffic control zone. The definition of ``high-visibility safety apparel'' is provided to relate this new rule to a specific and measurable standard. The American National Standards Institute (ANSI), in conjunction with the International Safety Equipment Association (ISEA), developed ANSI 107- 1999 standard for personal protective equipment conspicuity. ANSI 107- 2004 \7\ has superseded the ANSI 107-1999 standard. The revisions in the ANSI 107-2004 standard include the incorporation of improvements to the fabric of the safety apparel, the inclusion of additional examples of garment designs, and further guidance on the selection of the proper class of garment for the field conditions. The ANSI 107-2004 standard has become recognized by the industry and the FHWA as the national standard and therefore the FHWA proposes to include this standard in 23 CFR part 634. --------------------------------------------------------------------------- \7\ ANSI 107-2004 is now the nationally recognized standard for high-visibility garments developed in conjunction with the International Safety Equipment Association. copies may be obtained at: http://www.safetyequipment.org. --------------------------------------------------------------------------- The definition of ``workers'' is provided to explain that part 634 would apply to all workers who are working within the rights-of-ways of Federal-aid highways who are exposed to traffic, both highway traffic and moving construction equipment, when they are not in the cab of a motorized vehicle. For the purposes of this part, the FHWA proposes that workers include, but are not limited to, the following: highway construction and maintenance forces, survey crews, utility crews, responders to incidents within the highway right-of-way, law enforcement personnel and any other personnel whose duties put them on or in the right-of-way of a Federal-aid highway. The FHWA recognizes the multiple roles and responsibilities of law enforcement officers on the public right-of-way of Federal-aid highways. Law enforcement officers have responsibilities of incident response, work zone safety as well as law enforcement. The FHWA is seeking comments during this public comment period to fully assess the impact on safety and security of law enforcement officers should high visibility garments be required for use in all situations. The text in section 1402 of SAFETEA-LU specifically states that the requirement to wear high-visibility safety apparel applies to all workers who are on or in close proximity to Federal-aid highways. Definition 32 in section 1A.13 of the 2003 MUTCD defines ``highway'' as a general term for denoting a public way for purposes of travel by vehicular travel, including the entire area within the right-of-way. Therefore, for the purposes of part 634, the FHWA proposes that this requirement be interpreted to apply to all workers who are within the public right-of-way of a Federal-aid highway. Section 634.3 This section would implement the provisions of section 1402 of SAFETEA-LU. It would require all workers within the right-of-way of a Federal-aid highway who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction equipment within the work area to wear high-visibility safety apparel. The applicability of the requirements for high-visibility garments, under the proposed rule, would include non-traditional highway workers including responders to incidents and law enforcement personnel. Responders to incidents and law enforcement personnel on highways are exposed to the same hazards from traffic as those construction and maintenance workers, traditionally considered as highway workers. Improving the ability of the approaching motorist to identify persons on or in close proximity to the highway should improve the safety of all workers. In order to minimize the financial impacts of this new part, the FHWA proposes to establish a compliance date for part 634 that will be 2 years from the effective date of the final rule. The FHWA research into the service life of the high-visibility garments that are currently in use indicates that the useful service life of the vests depends greatly on the type of activities in which the workers are engaged while wearing the garments. The useful service life of garments that are worn on a daily basis is approximately 6 months. Garments that are not worn on a daily basis are expected to have a useful service life of up to 3 years. Therefore, the proposed 2-year compliance period should provide agencies and contractors sufficient time in most cases to react to the adoption of these new requirements by purchasing garments that comply with the new standard as they replace garments that have already reached the end of their useful service life. Rulemaking Analysis and Notices All comments received on or before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable, but the FHWA may issue a final rule at any time after the close of the comment period. In addition to late comments, the FHWA will also continue to file in the docket [[Page 20928]] relevant information that becomes available after the comment closing date, and interested persons should continue to examine the docket for new material. Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT Regulatory Policies and Procedures The FHWA has determined preliminarily that this action would not be a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of U.S. Department of Transportation regulatory policies and procedures. It is anticipated that the economic impact of this rulemaking would be minimal. As a result of the text in the 2003 MUTCD, many agencies have revised their policies to require their employees to wear ANSI Class 2 safety apparel at all times when they are working within the Federal- aid highway right-of-way and are revising their specifications to also require contractors' employees to wear compliant safety apparel when working within the right-of-way. In addition, in recognition of its risk management value, many contractors have begun to provide their workers with high-visibility safety apparel and to require its use on their projects, regardless of whether it is required by the contract language. The FHWA has researched the current practice regarding the use of high-visibility safety apparel in construction and maintenance work zones in 30 States. This research revealed that more than 90 percent (28 out of 30) of these State DOTs have already adopted policies that require highway construction and maintenance workers (including their own employees and contractors' employees) in highway work zones to wear high-visibility safety apparel. Most of these agencies specify the ANSI Class 2 standard and are furnishing them for their own employees. Therefore, a large majority of the State DOTs are already in compliance with the proposed requirements of this regulation. According to the U.S. Department of Labor, Bureau of Labor Statistics, there are approximately 350,000 workers involved in highway construction activities nationwide at any given time.\8\ The FHWA's research indicates that approximately 90 percent of States have already adopted high visibility garment policies in accordance with 2003 MUTCD. Therefore, the estimated economic impact for contractors will be the purchase of approximately 35,000 garments at $25.00 \9\ each for a total of $875,000. This cost will be borne across many agencies, and the impact to each agency individually would be minimal. In order to further minimize the financial impacts of this new part, the FHWA proposes to establish a compliance date for part 634 that will be 2 years from the effective date of the final rule. --------------------------------------------------------------------------- \8\ U.S. Department of Labor Bureau of Labor Statistics maintains records on the numbers of workers involved in the highway construction industry. The statistics may be viewed at http://www/ bls.gov. \9\ The FHWA researched the price of high-visibility garments with manufacturers. This figure represents an average cost that an agency or contractor can expect to pay for a ANSI Class 2 garment. --------------------------------------------------------------------------- Each year more than 100 workers are killed and over 20,000 are injured in the highway and street construction industry. We believe this proposed rule would help reduce these numbers. Improved visibility of workers within the Federal-aid highway right-of-way would reduce these numbers. The FHWA research into the service life of the high-visibility garments that are currently in use has shown that the useful service life of the vests depends greatly on the type of activities in which the workers are engaged while wearing the garments. The useful service life of garments that are worn on a daily basis is approximately 6 months. Garments that are not worn on a daily basis are expected to have a useful service life of up to 3 years. Therefore, the proposed 2- year compliance period should provide agencies and contractors sufficient time in most cases to react to the adoption of these new requirements by purchasing garments that comply with the new standard as they replace garments that have already reached the end of their useful service life. The FHWA believes there would also be a minimal economic impact to the incident responder community, such as law enforcement agencies and fire departments. The proposed 23 CFR part 634 would require these agencies to supply their personnel with high-visibility safety apparel for use on Federal-aid highway rights-of-ways. However, we do not believe we have enough information to determine what percentage of incident responders and law enforcement agencies have actually begun to wear high-visibility garments. Therefore, the FHWA is seeking comments during this public comment period that will allow the magnitude of the economic impact that this proposed new part would have on the incident response and law enforcement communities to be more fully assessed. Also, States and local agencies may use funding available under section 402 of chapter 4 of Title 23, the State and Community Highway Safety Grant Program, to purchase high visibility garments for worker safety when this purchase is part of an eligible section 402 highway safety project included in the State's approved highway safety plan. These proposed changes would not adversely affect, in any material way, any sector of the economy. In addition, these proposed changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act (5 U.S.C. 601- 612), the FHWA has evaluated the effects of these proposed changes on small entities. This action proposes to require all workers to wear high-visibility safety apparel when on the right-of-way of the Federal- aid highways. The results of FHWA research indicated that 90 percent of the States have adopted policies that require the use of high- visibility safety apparel in construction and maintenance (including their own employees and contractors' employees) in highway work zones. Most of these agencies specify the ANSI Class 2 standard and are furnishing them for their own employees. The FHWA believes many local agencies have also adopted this policy because the FHWA's research indicates that usually local agencies follow States' policies with respect to MUTCD standards and guidance. Also, the proposed rule would only apply to Federal-aid highway rights-of-way and the FHWA's research shows that the number of miles of Federal-aid highways that are owned by small entities makes up only approximately 25 percent of the total number of miles on the Federal-aid highway system.\10\ --------------------------------------------------------------------------- \10\ U.S. Department of Transportation, Federal Highway Administration Highway Statistics. This information is available at http://www/fhwa.dot.gov/policy/ohim/hs03. --------------------------------------------------------------------------- Therefore, the FHWA has determined that the proposed revisions would not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 This notice of proposed rulemaking would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, March 22, 1995). This proposed action would not result in the [[Page 20929]] expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120.7 million or more in any 1 year period to comply with these changes as these proposed changes are minor and non-substantive in nature, requiring no additional or new expenditures. Additionally, the definition of ``Federal mandate'' in the Unfunded Mandate Reform Act excludes financial assistance of the type in which State, local or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility to the States. Executive Order 13132 (Federalism) This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and the FHWA has determined that this proposed action would not have a substantial direct effect or sufficient federalism implications on States that would limit the policymaking discretion of the States and local governments. The FHWA has also determined that this proposed rulemaking would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions and does not have sufficient federalism implications to warrant the preparation of a federalism assessment. The proposed amendments are in keeping with the Secretary of Transportation's authority under 23 U.S.C. 109(d), 315, and 402(a) to promulgate uniform guidelines to promote the safe and efficient use of highways. Executive Order 13175 (Tribal Consultation) The FHWA has analyzed this proposed action under Executive Order 13175, dated November 6, 2000, and believes that it would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal law. The purpose of this proposed rule is to improve visibility of workers within the Federal- aid highway right-of-way to increase safety of these workers, and would not impose any direct compliance requirements on Indian tribal governments and will not have any economic or other impacts on the viability of Indian tribes. Therefore, a tribal summary impact statement is not required. Executive Order 13211 (Energy Effects) The FHWA has analyzed this proposed action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that it is not a significant energy action under that order because it is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required. Executive Order 12372 (Intergovernmental Review) Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this proposed action does not contain collection information requirements for purposes of the PRA. Executive Order 12988 (Civil Justice Reform) This proposed action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Executive Order 13045 (Protection of Children) The FHWA has analyzed this proposed action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This is not an economically significant action and does not concern an environmental risk to health or safety that may disproportionately affect children. Executive Order 12630 (Taking of Private Property) This proposed action would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. National Environmental Policy Act The agency has analyzed this proposed action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has determined that it would not have any effect on the quality of the environment. Regulation Identification Number A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. List of Subjects in 23 CFR Part 634 Design standards, Highways and roads, Incorporation by reference, Workers, Traffic regulations. Issued on: April 17, 2006. J. Richard Capka, Acting Federal Highway Administrator. In consideration of the foregoing, the FHWA proposes to add part 634 to title 23, Code of Federal Regulations, as follows: PART 634--WORKER VISIBILITY Sec. 634.1 Purpose. 634.2 Definitions. 634.3 Rule. Authority: 23 U.S.C. 101(a), 109(d), 114(a), 315, and 402(a); Sec. 1402 of Public Law 109-59; 23 CFR 1.32; and 49 CFR 1.48(b). Sec. 634.1 Purpose. The purpose of the regulations in this part is to decrease the likelihood of worker fatalities or injuries caused by motor vehicles and construction vehicles and equipment while working within the right- of-way on Federal-aid highways. Sec. 634.2 Definitions. Close proximity--means within the highway right-of-way on Federal- aid highways. Conspicuity means the characteristics of an object that influence the probability that it will come to the attention of an observer, especially in a complex environment with other competing objects. High-visibility safety apparel means personal protective safety clothing that is intended to provide conspicuity during both daytime and nighttime usage, and that meets the Performance [[Page 20930]] Class 2 or 3 requirements of the ANSI/ISEA 107-2004 publication entitled ``American National Standard for High-Visibility Safety Apparel and Headwear,'' which is published by the International Safety Equipment Association, 1901 N. Moore Street, Arlington, VA 22209 (http://www.safetyequipment.org). Workers means people on foot whose duties place them within the right-of-way of a Federal-aid highway, including highway construction and maintenance forces, survey crews, utility crews, responders to incidents within the highway right-of-way, law enforcement personnel and any other personnel whose duties put them on the Federal-aid highway right-of-way. Sec. 634.3 Rule. All workers within the right-of-way of a Federal-aid highway who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction equipment within the work area shall wear high-visibility safety apparel. [FR Doc. E6-6025 Filed 4-21-06; 8:45 am] BILLING CODE 4910-22-P

usgpo

2024-10-08T14:08:33.470020

FR

FR-2006-04-24/E6-6104

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20930-20931] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6104] ======================================================================= ----------------------------------------------------------------------- POSTAL RATE COMMISSION 39 CFR Part 3001 [Docket No. MC2006-4; Order No. 1462] Classification Changes for Express Mail Second Day Service AGENCY: Postal Rate Commission. ACTION: Notice of new docket and proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: This order announces a mail classification docket to consider and clarify domestic mail classification schedule language pertaining to Express Mail Second Day service. The proposed change, if adopted, will help clarify delivery guarantees. DATES: Deadline for filing notices of intervention and comments on Notice of Inquiry and need for a hearing: May 3, 2006; Deadline for filing replies to comments on Notice of Inquiry: May 10, 2006. ADDRESSES: File all documents referred to in this order electronically via the Commission's Filing Online system at http://www.prc.gov. FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, 202-789-6820. SUPPLEMENTARY INFORMATION: Notice is hereby given that pursuant to 39 U.S.C. 3623(b), the Commission is instituting a mail classification case to consider and clarify the language of the Domestic Mail Classification Schedule (DMCS) pertaining to Express Mail Second Day service. This classification case is in response to the issues brought to light in count 3 of the Complaint on Express Mail filed under 39 U.S.C. 3662 and docketed by the Commission as Docket No. C2005-1,\1\ and upon the statements, proffers and admissions offered by Postal Service counsel in the Postal Service's Answer in that proceeding.\2\ Background The Commission's views on the necessity and desirability for DMCS clarification on Express Mail Second Day service are explained in more detail in Order No. 1461. The primary focus of this proceeding is on how best to clearly state in the DMCS the scope of Second Day Express Mail service that the Postal Service intends to provide its customers. As it stands, several DMCS provisions call for second day delivery, when, in certain limited circumstances, the Postal Service has admitted that it does not expect to provide delivery until the third or fourth day. Delivery on the third or fourth day is nonetheless second delivery day delivery--mail that would have been delivered on the second calendar day except that Sunday or holiday delivery is not available at that particular destination. This proceeding is an attempt to promptly remedy that inconsistency and harmonize the ``refund'' section of the Express Mail DMCS language regarding Second Day service with the ``availability'' section.\3\ --------------------------------------------------------------------------- \1\ Douglas F. Carlson Complaint on Express Mail, February 18, 2005 (Complaint). \2\ Answer of United States Postal Service, May 5, 2005 (Answer). \3\ Compare DMCS section 182.4 with section 123.1. --------------------------------------------------------------------------- Intervention Those wishing to be heard in this matter are directed to file a notice of intervention on or before May 3, 2006. The notice of intervention shall be filed using the Internet (Filing Online) at the Commission's Web site (http://www.prc.gov), unless a waiver is obtained for hardcopy filing. Rules 9(a) and 10(a) [39 CFR 3001.9(a) and 39 CFR 3001.10(a)]. Notices should indicate whether participation will be on a full or limited basis and may include procedural suggestions. See rules 20 and 20a [39 CFR 3001.20 and CFR 3001.20a]. No decision has been made at this point on whether a hearing will be held in this case. Notice of Inquiry The current ``availability'' subsection of the Expedited Mail section of the DMCS is as follows: 123 Next Day Service and Second Day Service 123.1 Availability of Services. Next Day and Second Day Services are available at designated retail postal facilities to designated destination facilities or locations for items tendered by the time or times specified by the Postal Service. Next Day Service is available for overnight delivery. Second Day Service is available for second day delivery. The Commission recognizes that, ``[o]ver time, because of ambiguities or imprecise language, it becomes necessary to amend the DMCS to clarify or correct language that has led to misinterpretations in the application of the DMCS to specific types of mail matter.'' PRC Op. C85-1, para. 066. In that light, the Commission proposes to clarify the current DMCS language regarding the availability of Second Day service. The Commission proposes changes based upon statements made by the Postal Service in its Answer to the Complaint filed in C2005-1 as to the service it intends to provide its customers.\4\ Clarification is especially important since, as the Postal Service noted, the ``refund'' provision only provides for refunds for Second Day service if an Express Mail package is not delivered on the second delivery day.\5\ This anomalous result occurs even if second calendar day delivery is promised to a customer and yet the mailpiece is not delivered until the second delivery day, see DMCS section 182.4. --------------------------------------------------------------------------- \4\ Specifically, the ``Postal Service admits that, when customers send Express Mail on Fridays to destinations for which Next Day Service is not available, or when customers' Express Mail is accepted on Fridays after the cut-off time for Next Day Service, their Express Mail is guaranteed for delivery on Monday (or Tuesday, if Monday is a holiday) unless the destination ZIP Code is one in which Sunday and holiday delivery is available.'' Answer at 13. \5\ Id. at 11-12. --------------------------------------------------------------------------- Proposed Change Accordingly, the Commission proposes the following clarifying changes to the current DMCS: 123 Next Day Service and Second Day Service 123.1 Availability of Services. Next Day and Second Day Services are available at designated retail postal facilities to designated destination facilities or locations for items tendered by the time or times specified by the Postal Service. Next Day Service is available for overnight delivery. Second Day Service is available for delivery on the second delivery day as specified by the Postal Service. Participants are invited to submit comments on the proposed DMCS changes presented above on or before May 3, 2006. Reply comments may be submitted on or before May 10, 2006. [[Page 20931]] Necessity of a prehearing conference. Given the limited scope of this proceeding, the Commission will determine an appropriate procedural schedule after evaluating comments on its Notice of Inquiry. Participants shall file pleadings identifying and discussing the matters that would indicate the need to schedule a prehearing conference or a hearing, along with other matters referred to in this order by May 3, 2006. Representation of the general public. In conformance with section 3624(a) of title 39, the Commission designates Shelley S. Dreifuss, director of the Commission's Office of the Consumer Advocate, to represent the interests of the general public in this proceeding. Pursuant to this designation, Ms. Dreifuss will direct the activities of Commission personnel assigned to assist her and, upon request, will supply their names for the record. Neither Ms. Dreifuss nor any of the assigned personnel will participate in or provide advice on any Commission decision in this proceeding. Ordering Paragraphs It is ordered: 1. The Commission establishes Docket No. MC2006-4, Classification Changes for Express Mail Second Day Service to consider clarifying the DMCS language related to Second Day Express Mail service and other germane issues. 2. The Commission will sit en banc in this proceeding. 3. The deadline for filing notices of intervention is May 3, 2006. 4. Notices of intervention shall indicate the nature of the intervening party's participation in the case. 5. Participants are invited to submit comments on the Notice of Inquiry and the proposed DMCS change on or before May 3, 2006. Reply comments may be submitted on or before May 10, 2006. 6. Shelley S. Dreifuss, director of the Commission's Office of the Consumer Advocate, is designated to represent the interests of the general public. 7. The Secretary shall arrange for publication of this document in the Federal Register. Dated: April 19, 2006. Steven W. Williams, Secretary. List of Subjects in 39 CFR Part 3001 Administrative practice and procedure, Postal Service. For the reasons discussed above, the Commission proposes to amend 39 CFR part 3001 as follows: PART 3001--RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 3001 continues to read as follows: Authority: 39 U.S.C. 404(b); 3603; 3622-24; 3661, 3662, 3663. 2. Amend Appendix A to Subpart C--Postal Services Rates and Charges by revising 123.1 to read as follows: 123.1 Availability of Services. Next Day and Second Day Services are available at designated retail postal facilities to designated destination facilities or locations for items tendered by the time or times specified by the Postal Service. Next Day Service is available for overnight delivery. Second Day Service is available for delivery on the second delivery day as specified by the Postal Service. [FR Doc. E6-6104 Filed 4-21-06; 8:45 am] BILLING CODE 7710-FW-P

usgpo

2024-10-08T14:08:33.485415

FR

FR-2006-04-24/06-3854

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20931-20932] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3854] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-R01-OAR-2006-0119; A-1-FRL-8049-8] Approval of the Clean Air Act, Section 112(l), Authority for Hazardous Air Pollutants; Perchloroethylene Dry Cleaner Regulation, State of Maine Department of Environmental Protection AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: EPA proposes to approve the Maine Department of Environmental Protection's (ME DEP) request for approval to implement and enforce ``Chapter 125: Perchloroethylene Dry Cleaner Regulation'' in place of the National Emissions Standard for Hazardous Air Pollutants for Perchloroethylene Dry Cleaning Facilities (``Dry Cleaning NESHAP'') as it applies to area sources. Approval of this request for partial rule substitution would make Chapter 125 federally enforceable and consolidate the compliance requirements for area source dry cleaners in Maine into one set of regulations. Major source dry cleaning facilities would remain subject to the Dry Cleaning NESHAP. DATES: Written comments must be received on or before May 24, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01- OAR-2006-0119 by one of the following methods: 1. http://www.regulations.gov: Follow the on-line instructions for submitting comments. 2. E-mail: [email protected]. 3. Fax: (617) 918-0048. 4. Mail: ``EPA-R01-OAR-2006-0119'', Dan Brown, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAP), Boston, MA 02114-2023. 5. Hand Delivery or Courier. Deliver your comments to: Dan Brown, Manager, Air Permits, Toxics and Indoor Programs Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAP), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. Please see the direct final rule which is located in the Rules Section of this Federal Register for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Susan Lancey, Air Permits, Toxics, and Indoor Programs Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress St, Suite 1100, Boston, MA 02114, telephone number (617) 918-1656, fax (617) 918-0656, e-mail [email protected]. SUPPLEMENTARY INFORMATION: In the final rules section of this Federal Register, EPA is approving ME DEP's request as a direct final rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no relevant adverse comments. Chapter 125 has been in effect in Maine since 1991 and is, taken as a whole, more stringent than the Dry Cleaning NESHAP. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, EPA will take no further action on this proposed rule. If the EPA receives relevant adverse comments, EPA will withdraw the direct final rule and it will not take effect. EPA will then address all public comments received in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period in this action. For additional information see the direct final action which is published in the Rules Section of this Federal Register. [[Page 20932]] Dated: March 16, 2006. Robert W. Varney, Regional Administrator, EPA--New England. [FR Doc. 06-3854 Filed 4-21-06; 8:45 am] BILLING CODE 6560-50-P

usgpo

2024-10-08T14:08:33.512101

FR

FR-2006-04-24/E6-6024

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20932-20940] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6024] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA 2006-24497] RIN 2127-AI93 Federal Motor Vehicle Safety Standards; Occupant Protection in Interior Impact AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Response to petitions for rulemaking; notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: Our safety standard on occupant protection in interior impact requires, in part, that light vehicles provide head protection when an occupant's head strikes upper interior components, such as pillars, side rails, headers, and the roof during a crash. For altered vehicles and vehicles built in two or more stages, these requirements become effective September 1, 2006. The Recreation Vehicle Industry Association and the National Truck Equipment Association petitioned the agency to permanently exclude certain types of altered vehicles and vehicles manufactured in two or more stages from these requirements. This document responds to these petitions for rulemaking and proposes certain amendments to the standard. Based on a careful consideration of both the safety benefits of the upper interior protection requirements, and practicability concerns relating to vehicles built in two or more stages and certain altered vehicles, we are proposing to limit these requirements to only the front seating positions of those vehicles. Further, we tentatively conclude that it is appropriate to exclude a narrow group of multi- stage vehicles delivered to the final stage manufacturer without an occupant compartment, because of impracticability concerns. We are also proposing to delay the effective date of the head impact protection requirements as they apply to final stage manufacturers and alterers until September 1, 2008. DATES: You should submit your comments early enough to ensure that Docket Management System receives them not later than June 23, 2006. ADDRESSES: You may submit comments [identified by DOT Docket Number at the beginning of this document] by any of the following methods: Web site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site. Fax: 1-202-493-2251. Mail: Docket Management System; U.S. Department of Transportation, 400 7th Street, SW., Room PL-401, Washington, DC 20590. Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 7th Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments. Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to http://dms.dot.gov, including any personal information provided. Please see the Privacy Act heading under Regulatory Notices. Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or to Room PL- 01 on the plaza level of the Nassif Building, 400 7th Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: The following persons at the National Highway Traffic Safety Administration, 400 7th Street, SW., Washington, DC 20590: For technical and policy issues: Lori Summers, Office of Crashworthiness Standards, telephone: (202) 366-4917, facsimile: (202) 366-4329, E-mail: [email protected]. For legal issues: George Feygin, Office of the Chief Counsel, telephone: (202) 366-2992, facsimile: (202) 366-3820, E-mail [email protected]. SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. 1995 Final Rule Upgrading FMVSS No. 201 B. Subsequent Amendments to FMVSS No. 201 II. Petitions for Rulemaking A. Recreation Vehicle Industry Association Petition for Rulemaking B. National Truck Equipment Association Petition for Rulemaking III. The Agency's New Approach to Vehicles Built in Two or More Stages and Altered Vehicles A. ``Pass-Through'' Certification B. The Agency's Authority To Exclude Multi-Stage Vehicles From FMVSSs C. New Temporary Exemption Procedures Available to Final Stage Manufacturers and Alterers IV. Response to the RVIA and NTEA Petitions for Rulemaking A. Proposal To Limit the Occupant Compartment Area Subject to the FMH Impact Requirements in Ambulances, Motor Homes, and Other Vehicles Manufactured in Two or More Stages, and Altered Vehicles B. Proposal To Exclude Vehicles Manufactured in Two or More Stages, Other Than Motor Homes, Chassis Cabs, Cutaway Vans, and Other Incomplete Vehicles With a Furnished Front Compartment, From FMH Impact Requirements C. Question Regarding Multistage Vehicles With Raised Roofs D. Additional Relief Is Not Warranted V. Effective Date VI. Submission of Comments VII. Regulatory Analyses and Notices VIII. Proposed Regulatory Text I. Background A. 1995 Final Rule Upgrading FMVSS No. 201 On August 18, 1995, the National Highway Traffic Safety Administration (NHTSA) issued a final rule (August 1995 final rule) amending Federal Motor Vehicle Safety Standard (FMVSS) No. 201, ``Occupant Protection in Interior Impact,'' to provide enhanced head impact protection.\1\ The August 1995 final rule required passenger cars, and trucks, buses and multipurpose passenger vehicles (MPVs) with a gross vehicle weight rating (GVWR) of 4,536 kilograms (10,000 pounds) or less, to provide protection when an occupant's head strikes upper interior components, including pillars, side rails, headers, and the roof, during a crash. The new head protection requirements were necessary because even in vehicles equipped with air bags, head impacts with upper interior components resulted in a significant number of occupant injuries and fatalities. --------------------------------------------------------------------------- \1\ See 60 FR 43031, Aug. 18, 1995; Docket No. NHTSA-1996-1762- 1. --------------------------------------------------------------------------- The August 1995 final rule significantly expanded the scope of FMVSS No. 201. Previously, the [[Page 20933]] standard applied to the instrument panel, seat backs, interior compartment doors, arm rests and sun visors, but not to interior components such as pillars and headers. The final rule set minimum performance requirements for these upper interior components by establishing target areas that must be padded or otherwise have energy absorbing properties to minimize head injury in the event of a crash. The final rule added procedures for a new in-vehicle component test in which a free-motion head form (FMH) is fired at certain target locations on the upper interior of a vehicle at an impact speed of 24 km/h (15 mph). Targets that are located on or within 50 mm (2 inches) of dynamically deployable upper interior head protection systems (air bags systems) can, at the option of the manufacturer, be impacted at the reduced speed of 19 km/h (12 mph). Data collected from an FMH impact are translated into a Head Injury Criterion (HIC(d)) score. The resultant HIC(d) must not exceed 1000. The FMH impact requirements excluded targets located on convertible roof frames or roof linkage mechanisms, targets located at least 24 inches rearward of the rearmost designated seating position, and targets located at least 24 inches rearward of the driver's seating position in an ambulance or a motor home. Walk-in van-type vehicles were also excluded from the new requirements because upper interior components on those vehicles are located much higher compared to other vehicles, and head impacts against these components are unlikely for belted occupants.\2\ --------------------------------------------------------------------------- \2\ The current exclusions are specified in S6.3 of 49 CFR 571.201. --------------------------------------------------------------------------- The 1995 final rule provided manufacturers with three alternate phase-in schedules for complying with the FMH impact requirements. At this time, all vehicles except altered vehicles and vehicles manufactured in two-or-more stages are required to comply with the FMH impact requirements.\3\ As discussed below, the effective date for altered vehicles and vehicles manufactured in two or more stages to comply with these requirements is presently September 1, 2006.\4\ --------------------------------------------------------------------------- \3\ We note that under S6.3(d), walk-in van-type vehicles are permanently excluded from the FMH impact requirements. \4\ See S6.1.4 of 49 CFR 571.201. --------------------------------------------------------------------------- B. Subsequent Amendments to FMVSS No. 201 On April 8, 1997, the agency responded to petitions for reconsideration of the 1995 final rule.\5\ Among other things, the agency delayed the effective date of the FMH impact requirements for vehicles manufactured in two or more stages until September 1, 2002. The agency also excluded buses with a GVWR of more than 3,856 kg (8,500 pounds) from the FMH impact requirements because we were concerned that these requirements were prohibitively costly for that class of vehicles.\6\ Finally, the agency denied a petition to exclude police vehicles from the FMH impact requirements because the petitioner did not present evidence to indicate that police equipment required different treatment from interior attachments present in other vehicles subjected to testing. --------------------------------------------------------------------------- \5\ See 62 FR 16718, April 8, 1997. \6\ See id at 16720. --------------------------------------------------------------------------- In 2002, in response to petitions (described in detail in the next section) to permanently exclude altered vehicles and vehicles manufactured in two or more stages from the FMH impact requirements, the agency issued an interim final rule, delaying the effective date of these requirements as they apply to altered vehicles and vehicles manufactured in two or more stages until September 1, 2003.\7\ On August 28, 2003, the agency further delayed the effective date of the FMH impact requirements for altered vehicles and vehicles manufactured in two or more stages until September 1, 2006.\8\ The issue of permanent exclusion of these types of vehicles is being addressed in the subsequent sections of this notice.\9\ --------------------------------------------------------------------------- \7\ See 67 FR 41348, June 18, 2002. \8\ See 68 FR 51706, August 28, 2003. \9\ We note that there have been other, more recent amendments to the requirements of FMVSS No. 201. However, their content had no relevance to this NPRM. --------------------------------------------------------------------------- II. Petitions for Rulemaking This document addresses petitions for rulemaking submitted by the Recreation Vehicle Industry Association (RVIA) and the National Truck Equipment Association (NTEA). The member companies of RVIA and NTEA are generally considered final-stage manufacturers and alterers. That is, they purchase incomplete vehicles from major manufacturers to serve as the basis for specialty vehicles (manufactured in two or more stages) for certain uses and markets, or alter completed vehicles prior to first retail sale. As such, the petitioners' members face a variety of challenges in certifying that their vehicles meet applicable safety standards. We note that with respect to vehicles manufactured in two or more stages, some multi-stage vehicles are built from chassis-cabs with a completed occupant compartment. Others are built from less complete vehicles, often necessitating the addition by the final-stage manufacturer of its own occupant compartment. The final stage manufacturer is responsible for certification of the completed vehicle, although, as discussed below, it can often ``pass-through'' by incomplete vehicle manufacturer. A. Recreation Vehicle Industry Association Petition for Rulemaking On October 4, 2001, the RVIA submitted a petition for rulemaking requesting that ``van conversions, altered vehicles, and motor homes'' with a GVWR of 10,000 pounds or less be excluded from the requirements of the August 1995 final rule.\10\ --------------------------------------------------------------------------- \10\ To examine the petition, please go to http://dms.dot.gov/ and enter Docket No. NHTSA-2000-7145-6. --------------------------------------------------------------------------- The RVIA is a national trade association representing final stage manufacturers and alterers. These entities alter vans, pickup trucks, and sport utility vehicles prior to first retail sale (RVIA refers to these vehicles collectively as conversion vehicles or ``CVs''), and also manufacture motor homes. The RVIA petition requested that CVs and motor homes be excluded from the FMH impact requirements for the following reasons: 1. RVIA argues that in the statutory enactment directing NHTSA to improve head impact protection, Congress specifically limited its mandate to passenger cars. RVIA stated that a proposed Senate amendment to include multipurpose passenger vehicles (MPVs) and light duty trucks (LDTs) was expressly rejected.\11\ Because the agency chose to proceed beyond the congressional mandate, RVIA argues that NHTSA has the discretion to exclude vehicles, other than passenger cars, from the FMH impact requirements. --------------------------------------------------------------------------- \11\ See H.R. Conf. Rep. No. 102-404, at 395-396 (1991). --------------------------------------------------------------------------- 2. With the exception of a single entity, all RVIA members fall under the ``small business'' definition for the purposes of Small Business Administration regulations.\12\ RVIA states that its members have been operating in a declining market where production of CVs and motor homes has been declining sharply. For example, in 1999, RVIA members produced 104,100 CVs and 4,634 motor homes. By contrast, 2001 shipments were projected at 38,000 CVs and 3,629 motor homes. In light of their member's ``small business'' status and declining sales, RVIA argues that the member companies do not have the financial [[Page 20934]] resources and technical expertise to comply with FMH impact requirements. --------------------------------------------------------------------------- \12\ See 13 CFR 121.201. --------------------------------------------------------------------------- 3. RVIA estimates the cost of compliance (including development and tooling) to average $2,401 to $4,850 per each CV and $4,748 to $5,747 per each motor home, respectively.\13\ RVIA estimates that the costs associated with certification testing to be as high as $46,000 for each vehicle configuration. --------------------------------------------------------------------------- \13\ RVIA's detailed certification testing and tooling cost estimates are on page 7 and in Exhibit D of the petition (Docket No. NHTSA-2002-7145-6). --------------------------------------------------------------------------- RVIA argues that most CVs and motor homes feature unique interior designs. Specifically, these vehicles include overhead cabinets, side valances, raised roof structures, and other unusual interior components. RVIA members offer an average of 18 different CV configurations each, all of which would require separate certification testing. Some offer as many as 38 different CV variations. Motor home manufacturers offer as many as 14 motor home variations. However, at least one motor home manufacturer offers at least 73 different ``floor plans.'' RVIA states that this product variation necessitates conducting FMH impact testing on each vehicle configuration and may even require multiple identical vehicles to test each configuration. Because of the differences in the customized interiors, RVIA argues that the manufacturers have been unable to arrive at practicable and cost-effective ``countermeasures;'' i.e., additional padding designed to bring these vehicles into compliance with FMH impact requirements. 4. RVIA states that cooperative testing, suggested by NHTSA as a way to lessen compliance costs associated with FMH requirements, is not practicable because each RVIA member manufactures unique vehicles, each substantially different from its competitors. Because these vehicles are different, cooperative testing is impossible unless interiors for all vehicles manufactured by RVIA members are made uniform. Accordingly, RVIA argues that cooperative testing would eliminate interior customization, which would in turn result in a loss of market for CVs and motor homes. 5. RVIA argues that the safety benefits of FMH impact requirements as applied to CVs and motor homes are marginal. RVIA conducted a survey of CV and motor home manufacturers which showed no crashes in which an occupant injury or death had occurred due to head impacts with upper interior components covered by FMH impact requirements. RVIA cites Fatal Analysis Reporting System (FARS) data in arguing that van-based motor homes are safe. Specifically, between 1996 and 1999, there was an average of 14 fatalities per year in all van-based motor homes regardless of the GVWR, which translates to 0.0039 fatalities per 1,000,000 annual vehicle miles (compared to 0.0143 fatalities per 1,000,000 miles for passenger cars). Based on these data, RVIA estimates that the safety benefit reduction from excluding small, van-based motor homes from the FMH impact requirements would be extremely low. Since FARS does not track crash data for all CVs, RVIA was not able to make a similar estimate for CVs. However, RVIA argues that CVs are safer than an average passenger car, and that the safety benefit reduction in the case of CVs would also be quite low.\14\ --------------------------------------------------------------------------- \14\ Petitioners support this assertion by a letter from RV Alliance America. The letter is found in Exhibit E (Docket No. NHTSA-2002-7145-6). --------------------------------------------------------------------------- 6. RVIA members produce vehicles to the consumer's specifications and many special components and designs are installed in response to consumer requests. RVIA argues that in granting a previous (unrelated) temporary exemption from the requirements of FMVSS No. 201, the agency acknowledged public benefit in affording consumers a wide choice of motor vehicles.\15\ Petitioners asked that the agency adhere to this policy by allowing RVIA members to continue manufacturing CVs and motor homes built to customer specifications. --------------------------------------------------------------------------- \15\ See 64 FR 61379, November 10, 1999. --------------------------------------------------------------------------- B. National Truck Equipment Association Petition for Rulemaking On November 27, 2001, NTEA submitted a petition for rulemaking requesting that certain vehicles manufactured in two or more stages be excluded from FMH impact requirements arguing that the requirements are impracticable as they apply to these vehicles.\16\ These vehicles included ambulances, fire fighting, rescue, emergency, and law enforcement vehicles. Additionally, the NTEA requested exemption from FMH impact requirements for any target in a truck or multipurpose passenger vehicle located rearward of a vertical transverse plane through the foremost design H-point of the rear most forward facing designated seating position where the vehicle is equipped with a full or partial bulkhead or other similar device for the purpose of protecting or isolating the driver and passenger compartment from the cargo carrying, load bearing, or work performing area of the vehicle. --------------------------------------------------------------------------- \16\ See NHTSA-2001-8876-10 at http://dms.dot.gov/. NTEA also filed subsequent petitions to delay the effective date of the August 1995 final rule as it applied to vehicles manufactured in two or more stages. These later petitions relied on the same arguments presented to the agency in the November 27, 2001 document (see NHTSA-2002-12480-2, NHTSA-2002-12480-3). --------------------------------------------------------------------------- NTEA represents 1,500 distributors, final stage and intermediate manufacturers, and alterers of work-related trucks, truck bodies and equipment. More specifically, NTEA member companies produce ambulances, fire fighting, rescue, emergency or law enforcement vehicles, utility company vehicles, aerial bucket trucks, delivery trucks and a variety of other specialized vehicles for commercial or vocational use. These entities generally use incomplete vehicles provided by major manufacturers and assemble a completed vehicle for a specified purpose using the chassis provided by another company. As discussed above, altered vehicles and vehicles manufactured in two or more stages must comply with FMH impact requirements beginning September 1, 2006. In 2001, NTEA estimated that 377,000 vehicles produced by its members annually would have to meet the FMH impact requirements. NTEA asked for an exclusion of such vehicles because it believes that NTEA member manufacturers will not be able to demonstrate that these vehicles comply with FMH impact requirements without conducting individual full-scale dynamic testing on each vehicle model, which NTEA argues is not economically or technologically possible. Other options for demonstrating compliance, such as pass through certifications, engineering analysis, and computer modeling, are, according to NTEA, not available or economically feasible. First, NTEA believes that FMH testing for the subject vehicles is not economically feasible because of the number of vehicle configurations produced by the multi-stage truck and specialty vehicle industry. NTEA estimates that in aggregate, compliance testing would cost its members $160,000,000. Specifically, NTEA states that there are over 1,200 identifiable vehicle configurations produced by its members. For each configuration, the cost of actual testing is approximately $14,000 to $17,000 (NTEA states that this cost estimate does not account for development costs, costs for re-testing after failures, transportation of the vehicle to the test facility, or countermeasures in production vehicles that would be necessary to produce a [[Page 20935]] compliant vehicle).\17\ Besides costs, NTEA argues that it is not feasible to test each vehicle configuration produced by its member manufacturers because they are aware of only two testing facilities that provide dynamic testing, and each is only capable of testing 12 vehicles per month. --------------------------------------------------------------------------- \17\ See Appendix A of the NTEA petition. --------------------------------------------------------------------------- Second, NTEA stated that alternative options to demonstrate compliance such as pass-through certifications,\18\ test data from component vendors, engineering analysis, computer modeling, and consortium dynamic testing, are not available. --------------------------------------------------------------------------- \18\ In a ``pass through'' of chassis manufacturer compliance, multi-stage manufacturers certify compliance by ``passing through'' the chassis manufacturer's certification. --------------------------------------------------------------------------- Specifically, NTEA argued that pass-through is not an available option because the member manufacturers often complete the vehicle ``outside the parameters'' provided by the chassis manufacturer. For example, the installation of bulkheads or partitions usually invalidates the chassis manufacturer's compliance statement. In many work vans, emergency vehicles, or police vehicles, bulkheads or dividers are needed to ensure that objects or people that must remain in the rear of the vehicle actually do so. Installation of these bulkheads, according to NTEA, is likely to require relocation of target areas originally certified by the incomplete vehicle manufacturer, adding to the compliance burden of the NTEA member and frustrating the ability to take advantage of ``pass through'' certification. Furthermore, NTEA asserts that the chassis manufacturer's completion guidelines are too restrictive to allow for compliance. Additionally, NTEA argued that other compliance options are also unavailable to multi-stage manufacturers. NTEA stated that the chassis manufacturers do not provide sufficient compliance information to the multi-stage manufacturers and that the test data is not enough to certify compliance under FMVSS No. 201 because validation requires in- system testing. NTEA also argued that engineering analysis and computer modeling are not possible because they require previous dynamic test data that do not exist. Finally, NTEA stated that consortium testing is not an option since the compliance tests developed by NHTSA are so specific that minor differences produce significantly different test results. III. The Agency's New Approach to Vehicles Built in Two or More Stages and Altered Vehicles On February 14, 2005, the agency issued a final rule (February 2005 final rule) which enables more final stage manufacturers to take advantage of ``pass-through'' certification by requiring incomplete vehicle manufacturers to assume certification responsibility for the vehicle as further manufactured or completed by a final-stage manufacturer, to the extent that the vehicle is completed in accordance with the Incomplete Vehicle Document (IVD) described below.\19\ Previously, this requirement only applied to chassis-cab manufacturers. The February 2005 final rule also created a new process under which manufacturers of vehicles built in two or more stages and alterers could obtain temporary exemptions from certain dynamic performance requirements. Finally, as a part of that rulemaking, we refined our analysis of the agency's authority to establish different requirements for vehicles built in two or more stages. The February 2005 final rule becomes effective September 1, 2006. --------------------------------------------------------------------------- \19\ See 70 FR 7414, Docket No. 1999-5673-54. --------------------------------------------------------------------------- The agency is in the process of considering a petition for reconsideration of the February 2005 final rule submitted by NTEA.\20\ We expect to issue our response shortly. --------------------------------------------------------------------------- \20\ See Docket No. NHTSA-1999-5673-55. See also comment concerning the NTEA petition for reconsideration submitted by General Motors (Docket No. NHTSA-1999-5673-56). --------------------------------------------------------------------------- A. ``Pass-Through'' Certification Manufacturers of chassis-cabs are currently required to place on the incomplete vehicle a certification label stating under what conditions the chassis-cab has been certified. This allows what is commonly referred to as ``pass-through'' certification. As long as a subsequent manufacturer meets the conditions of the chassis-cab certification, that manufacturer may rely on this certification and pass it through when certifying the completed vehicle. However, the current certification regulations do not impose corresponding certification responsibilities on manufacturers of incomplete vehicles other than chassis-cabs (e.g., incomplete vans, cut-away chassis, stripped chassis and chassis-cowls). The February 2005 final rule extended these certification responsibilities to all types of incomplete vehicles. More specifically, beginning September 1, 2006, all incomplete vehicle manufacturers and intermediate manufacturers will have certification responsibilities for the vehicles as further manufactured or completed by final-stage manufacturers, to the extent that the vehicle is completed in accordance with the conditions specified in the IVD.\21\ --------------------------------------------------------------------------- \21\ The IVD details, with varying degrees of specificity, the types of future manufacturing contemplated by the incomplete vehicle manufacturer and must provide, for each applicable safety standard, one of three statements that a subsequent manufacturer can rely on when certifying compliance of the vehicle, as finally manufactured, to some or all of all applicable FMVSSs. First, the IVD may state, with respect to a particular safety standard, that the vehicle, when completed, will conform to the standard if no alterations are made in identified components of the incomplete vehicle (this representation is most often made with respect to chassis-cabs, since a significant portion of the occupant compartment is already complete). Second, the IVD may provide a statement for a particular standard or set of standards of specific conditions of final manufacture under which the completed vehicle will conform to the standard (this statement is applicable in those instances in which the incomplete vehicle manufacturer has provided all or a portion of the equipment needed to comply with the standard, but subsequent manufacturing might be expected to change the vehicle such that it may not comply with the standard once finally manufactured). Third, the IVD may identify those standards for which no representation of conformity is made (for example, a manufacturer of a stripped chassis may be unable to make any representations about conformity to any crashworthiness standards if the incomplete vehicle does not contain an occupant compartment). --------------------------------------------------------------------------- B. The Agency's Authority to Exclude Multi-Stage Vehicles From FMVSSs In the February 2005 final rule, the agency reconsidered a previous position and concluded that it has authority to exclude multi-stage vehicles as a group from FMVSSs that are impracticable as they applied to these vehicles, or to subject these vehicles to different requirements. NHTSA concluded that it is appropriate to consider multi- stage vehicles as a vehicle type subject to consideration in the establishment of a regulation. For a detailed discussion of this issue, see 70 FR 7014 at 7421. C. New Temporary Exemption Procedures Available to Final Stage Manufacturers and Alterers The February 2005 final rule established new procedures available to manufacturers of vehicles built in two or more stages and alterers for obtaining temporary exemptions from FMVSSs for which the agency specifies certain dynamic test procedures to determine compliance. The new procedures streamline the temporary exemption process by allowing an association or another party representing the interests of multiple manufacturers to bundle exemption petitions for a specific [[Page 20936]] vehicle design, thus permitting a single explanation of the potential safety impact and good faith attempts to comply with the standards. The new exemption procedures specify that each manufacturer seeking an exemption is required to demonstrate financial hardship and good faith efforts to comply with applicable requirements. Exemptions based on financial hardship are available to companies manufacturing less than 10,000 vehicles per year, and any one exemption cannot apply to more than 2,500 vehicles per year. We note that, given the regulatory text specifying the new temporary exemption procedure, there is an issue whether that procedure is available for the head impact protection requirements at issue in the NTEA and RVIA petitions. That regulatory text reads as follows: * * *An alterer, intermediate or final-stage manufacturer, or industry trade association representing a group of alterers, intermediate and/or final-stage manufacturers may seek * * * a temporary exemption or a renewal of a temporary exemption from any performance requirement for which a Federal motor vehicle safety standard specifies the use of a dynamic crash test procedure to determine compliance. [Emphasis added] The procedure for the head impact protection requirements does not incorporate a full scale crash test except as an option for vehicles equipped with a dynamically deployable upper interior head protection system, which we do not believe is relevant to vehicles that are subject of the RVIA and NTEA FMVSS No. 201 petitions. Nevertheless, the upper interior requirements have a number of similarities to crash tests. For purposes of this rulemaking, we are proposing to extend the scope of the new temporary exemption procedures such that multistage manufacturers would be able to petition NHTSA for an exemption from FMH impact requirements. First, we observe that small volume multistage manufacturers are currently able to petition the agency for temporary exemptions from all FMVSSs, including FMH impact requirements, under the existing temporary exemption procedures currently in effect. Therefore, our proposal to expand the scope of the new temporary exemption procedures to include consideration of petitions related to FMH impact testing relates to the availability of the more streamlined procedures rather than to the possibility of a manufacturer obtaining an exemption, in appropriate circumstances, at all. Second, we believe that, in limited circumstances, the difficulty or impracticability of testing a multitude of unique vehicle configurations, or otherwise obtaining an appropriate basis for certification, with the associated financial hardships, may extend to FMH impact requirements. Specifically, there is a considerable cost associated with FMH impact tests and vehicles are usually damaged during testing. Finally, we expect the number of instances in which an exemption will be needed to be very small because in order to petition for an exemption, the petitioner would have to show why FMH impact tests would cause substantial economic hardship. This showing must include detailed financial information and a complete description of the petitioner's good faith efforts to comply with the standards. Specifically, the petitioner would have to explain the inadequacy of IVD documents furnished by one or more incomplete vehicle manufacturers or by prior intermediate manufacturers pursuant to 49 CFR part 568. The petitioner would also have to show why generic or cooperative testing is impracticable. In addition, each petitioner is required to explain under Sec. 555.13(c) why the requested temporary exemption would not unreasonably degrade safety. We are not proposing specific regulatory text in this document. We note that this issue is also before the agency in the context of petitions for reconsideration of the February 2005 final rule establishing the new exemption procedures. We also note that depending on the agency's decision in that proceeding, this issue could become moot as to this rulemaking. IV. Response to the RVIA and NTEA Petitions for Rulemaking As discussed above, RVIA and NTEA petitioned the agency to permanently exclude certain altered vehicles and vehicles manufactured in two or more stages from all or a portion of the FMH impact requirements. We are granting the petition in part, by proposing to further limit the area that is subject to FMH impact requirements in ambulances, motor homes, and extending this limitation to other vehicles manufactured in two or more stages, as well as altered vehicles. We are also proposing to exclude vehicles delivered to a final stage manufacturer without an occupant compartment from the FMH impact requirements. We are denying all other parts of the petitions. A. Proposal To Limit the Occupant Compartment Area Subject to the FMH Impact Requirements in Ambulances, Motor Homes, and Other Vehicles Manufactured in Two or More Stages, and Altered Vehicles In ambulances and motor homes, the current standard excludes the occupant compartment area located more than 600 mm (24 inches) behind the seating reference point of the driver's seating position from the FMH impact requirements. For all other vehicles, the occupant compartment area located more than 600 mm (24 inches) behind the seating reference point of the rearmost designated seating position is similarly excluded from the FMH impact requirements. For altered vehicles and vehicles manufactured in two or more stages, including motor homes and ambulances, we are proposing to limit the area subject to the FMH impact requirements to not more than 300 mm (12 inches) behind the seating reference point of the driver's seating position. This would have the effect of limiting the FMH impact requirements to the front seating positions for these vehicles. We believe that the distance reduction to 300 mm (12 inches) is more representative of the distance between the seating reference point and the upper seat back/head restraint location where the occupant's head is located. Because of the front head restraint height requirements, we believe it is unlikely that the head of a seated occupant would come in contact with bulkheads, partitions, or overhead cabinets and storage shelves located further than 300 mm (12 inches) behind the seating reference point of the driver's seating position. However, we are not granting the NTEA proposal to limit the seat position for this exclusion to the foremost design H-point (rather than the seating reference point) since we believe that a large portion of the seated driver's head would not be provided head protection in the areas of B- pillars and side rails between the A-pillar and the B-pillar. In developing this proposal, we have carefully considered both the safety benefits of the FMH requirements and practicability concerns relating to multistage vehicles. Based on previous estimates of the benefits of the FMVSS No. 201 final rule, and estimates from the National Automotive Sampling System, Crashworthiness Data System of the percent of injuries occurring to light truck occupants in multi-stage vehicles, the agency derived the following estimate of safety benefits. Requiring all multi-stage manufactured vehicles to [[Page 20937]] meet FMVSS No. 201 would have annual benefits in the front seat of 16- 22 fewer fatalities and 19-22 fewer AIS 2-5 injuries. However, in the rear seats, the benefits are estimated to be less than 1 fatality (which would round down to 0) and 1 AIS 2-5 injury. Thus, based on this analysis, excluding multi-stage vehicles from target points that could not be struck by the front row occupants would have a very small impact on safety. Given the small safety benefits associated with the FMH impact requirements for rear seating positions and practicability concerns, we have tentatively concluded that the FMH impact requirements should be limited to the front seating positions for these vehicles. As indicated in its petition, many commercial vehicles manufactured by NTEA members feature bulkheads or partitions located less than 600 mm (24 inches) behind the rearmost designated seating position. Bulkheads or partitions are used in a variety of work vehicles that haul odd-shaped objects that cannot be readily secured in the cargo area. These structures protect the driver and passenger from loose or shifting or shifting cargo or work equipment. NTEA argued that the installation of bulkheads or partitions would likely require relocation of target areas originally certified by the incomplete vehicle manufacturer, thus significantly adding to the compliance burden. As discussed above, RVIA argued that most CVs and motor homes feature unique interior designs. Specifically, these vehicles include overhead cabinets, side valances, raised roof structures, and other unusual interior components. Among other things, RVIA stated that cooperative testing, suggested by NHTSA as a way to lessen compliance costs associated with FMH requirements, is not practicable because each RVIA member manufactures unique vehicles, each substantially different from its competitors. RVIA argued that cooperative testing would eliminate interior customization, which would in turn result in a loss of market for CVs and motor homes. We believe our proposal to effectively limit the FMH impact requirements to the front seating positions for these vehicles would provide appropriate relief to the industries represented by NTEA and RVIA, while continuing to meet the need for safety. As discussed above, the benefits related to rear seating positions are very small. We note that NTEA and RVIA members can ordinarily purchase incomplete vehicles that are already designed to meet the FMH impact requirements for the front seating positions. Under our proposal, final stage manufacturers would ordinarily be able to take advantage of pass- through certification by not changing the upper interior portions of the front of the vehicle. We believe the requirements are justified by safety. As indicated above, we estimate that requiring all multi-stage manufactured vehicles to meet FMVSS No. 201 would have annual benefits in the front seat of 16-22 fewer fatalities and 19-22 fewer AIS 2-5 injuries. Given the safety significance of these requirements, we believe, in situations where final stage manufacturers use incomplete vehicles that have occupant compartments that either are designed to meet the FMH impact requirements for the front seating positions or can be purchased in a configuration that is designed to meet those requirements, it would be inconsistent with the need for safety to generally exclude the vehicles from these head impact protection requirements. We also note that while final stage manufacturers will be able to submit petitions under subpart B of part 555, it is unlikely in this type of situation that the agency would find it in the public interest to exclude final stage manufacturers from the front seat head impact protection requirements of FMVSS No. 201 to facilitate customization of the upper interior portions of the front of the vehicle. Our proposal would, however, facilitate customization of the rear of vehicles, including conversion vans, where there would be no significant impact on safety. Moreover, we continue to believe that final stage manufacturers can use cooperative testing to determine the types of changes that can be made while enabling vehicles to continue to comply with the FMH requirements, including ones related to use of overhead cabinets, raised roof structures, and so forth. Thus, while customization of the front portion of occupant compartments will be more difficult and may be more limited, it will by no means be eliminated. B. Proposal To Exclude Vehicles Manufactured in Two or More Stages, Other Than Motor Homes, Chassis Cabs, Cutaway Vans, and Other Incomplete Vehicles With a Furnished Front Compartment, From FMH Impact Requirements We tentatively conclude that a narrow group of multi-stage vehicles contains physical attributes that make compliance with the FMH impact requirements impracticable. These are vehicles built on a ``stripped'' chassis; i.e., an incomplete vehicle without an occupant compartment. The manufacturers of these vehicles would not be able to rely on pass- through certification. This is because these vehicles are highly customized and produced in quantities that would make compliance prohibitively expensive. Further, these vehicles are often equipped with partitions and bulkheads that present a further impediment to the compliance efforts. We note that for vehicles manufactured from stripped chassis, the cost of meeting the FMH impact requirements could be substantial because the alternative means of compliance such as pass-through certification are not available. In the context of serving niche markets demanding specialized work vehicles that are not delivered to the final stage manufacturers with an intact occupant compartment (unlike for example, chassis cabs and cut-away vans), we believe that the physical limitations of these vehicles can adversely affect the ability of multi-stage manufacturers to design safety performance into their completed vehicles. Accordingly, we believe it appropriate to exclude this narrow group of vehicles from FMH impact testing. C. Question Regarding Multistage Vehicles With Raised Roofs Certain multistage vehicles are manufactured with raised roofs. The final-stage manufacturer cuts out a portion of the original roof and attaches a raised roof, typically made of fiberglass that may also have metal inserts imbedded for strength. The manufacturers of these vehicles may not be able to take advantage of pass through certification because raising the roof affects the location of certain targets subject to FMH impact testing. The raised roof has a different shape than the van portion of an incomplete vehicle. Therefore, the reference points located on the exterior, i.e., APR and BPR, will probably not be the same and the FMH targets inside the vehicle may be in different locations from those that the incomplete vehicle manufacturer stated could be certified as pass through. In addition, the portion of the roof over the front seating area would be affected when the final-stage manufacturer installs a headliner and/or padding in a vehicle with a raised roof or a non-raised roof. We believe that the original targets in raised roof vehicles, e.g., those along the pillars and side rails, may be as appropriate for safety as the targets that would be calculated for the new [[Page 20938]] configuration. We are therefore considering permitting manufacturers to meet requirements for either the target locations as calculated for the original configuration or changed configuration. This would also make compliance easier for final stage manufacturers. We are asking for comment on this approach to targets in vehicles with raised roofs. D. Additional Relief Is Not Warranted After carefully considering RVIA's and NTEA's petitions, we have decided not to propose a broader exclusion from the FMH requirements for front seat areas of conversion vans, motor homes, ambulances, fire fighting, rescue, emergency, law enforcement, and altered vehicles. As explained above, we believe that the head impact protection requirements provide important safety benefits in front seating positions of vehicles manufactured in two or more stages, and our proposal would provide appropriate relief to the industries represented by NTEA and RVIA, while continuing to meet the need for safety. RVIA and NTEA did not provide any convincing reasons why occupants of its members' vehicles would not benefit from the same level of protection as required for other vehicles. Conversion vans, light duty motor homes, and other altered vehicles are typically driven by regular passenger vehicle drivers who require the same type of occupant protection as other passenger vehicle drivers. Furthermore, the petitioners did not explain why the occupants of ambulances, fire fighting, rescue, emergency, and law enforcement vehicles that may additionally travel at high rates of speed through unconventional traffic paths would not benefit from countermeasures designed to reduce head impacts in the event of a collision. We note that the petitioners are also able to purchase incomplete vehicles that are already designed to meet the FMH impact requirements for the front seating positions. Under our proposal, the rear portions of multi-stage and altered vehicles, where the majority of vehicle customization is performed, would be excluded from the FMH requirements. Furthermore, final stage manufacturers would ordinarily be able to take advantage of pass-through certification by not changing the upper interior portions of the front of the vehicle. Accordingly, compliance costs and test burdens, (i.e., the petitioners' main concerns), would be substantially reduced when certifying these vehicles. We further believe that the compliance costs provided by the RVIA and NTEA in their petition were overstated. For example, the compliance test cost estimates provided by RVIA were not averaged over the years of vehicle production. Instead, the costs were reflective of only the first production year. RVIA did not provide the actual production cycles for its various vehicles, so its cost estimates were based on a one-year production cycle. Typically, when vehicle compliance costs are amortized over the vehicle production years, the costs are a lot smaller, as evidenced by the rulemaking involving small school buses where the estimated compliance cost per multi-stage vehicle was less than $1,000 in 1993 economics.\22\ --------------------------------------------------------------------------- \22\ See 62 FR 16718, April 8, 1997. --------------------------------------------------------------------------- NTEA estimated that compliance with the FMH requirements would cost its industry a minimum of $160 million and 64 years to comply. However, this was based on the availability of two test laboratories that conducted FMH testing in 2001 and no pass-through certification was applied. We believe that laboratory experience has improved greatly since that time, and the exclusions that we are proposing in this notice will have a large impact on reducing the actual compliance costs. RVIA and NTEA did not provide any convincing reasons why it is not generally practicable for these vehicles to comply. With respect to conversion vans and motor homes, the agency believes that there are alternative locations for the installation of hardwood cabinetry, and audio/video entertainment systems (other than mounted over the heads of front seat occupants). There are also other more compliant materials than hardwood that could be utilized by conversion van and motor home customization specialists. As to fire fighting and rescue vehicles (with a gross vehicle weight rating of 4,536 kg or less), these vehicles are basically multi- stage work vehicles furnished with special equipment and tools designed exclusively for the purpose of rescuing people in emergency situations. We are proposing to exclude the rear compartment area of these vehicles from FMH target requirements, as we are for other multistage. We do not believe there is any reason to treat the front occupant compartment of these vehicles differently from other multistage vehicles (such as utility company trucks, contractor vehicles, snow removal vehicles, etc). Thus, we believe that no additional relief is necessary. The agency has also previously considered and denied the exclusion of police cars from the FMH requirements.\23\ Our position on that issue has not changed substantially. Previously, the NTEA requested that police cars be excluded since these cars have special equipment, including gun racks and spotlight control mounted on the upper roof interior, and a bulkhead behind the front seats. However, the agency believes that interior components, such as gun racks and spotlight controls do not necessarily have to be mounted on the vehicle roof interior surface in the vicinity of the driver's head, and can alternatively be accommodated with padding. Furthermore, we are aware that there are available equipment packages (such as remote-controlled spotlights and A-pillar mounted spotlights below the AP3 target location) that would facilitate compliance with the FMH requirements. --------------------------------------------------------------------------- \23\ See id. --------------------------------------------------------------------------- VII. Effective Date We are proposing to delay the effective date of the FMH impact requirements as they apply to final stage manufacturers and alterers from September 1, 2006 until September 1, 2008. VIII. Submission of Comments A. How Do I Prepare and Submit Comments? Your comments must be written and in English. To ensure that your comments are filed correctly in the Docket, please include the docket number of this document in your comments. Your comments must not be more than 15 pages long.\24\ NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments. --------------------------------------------------------------------------- \24\ 49 CFR 553.21. --------------------------------------------------------------------------- Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES. You may also submit your comments to the docket electronically by logging onto the Docket Management System (DMS) Web site at http://dms.dot.gov. Click on ``Help & Information'' or ``Help/ Info'' to obtain instructions for filing your comments electronically. Please note, if you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using Optical Character Recognition (OCR) process, thus allowing the agency to search and copy certain portions of your submissions.\25\ --------------------------------------------------------------------------- \25\ Optical character recognition (OCR) is the process of converting an image of text, such as a scanned paper document or electronic fax file, into computer-editable text. --------------------------------------------------------------------------- [[Page 20939]] How Can I Be Sure That My Comments Were Received? If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail. How Do I Submit Confidential Business Information? If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in NHTSA's confidential business information regulation (49 CFR part 512). Will the Agency Consider Late Comments? NHTSA will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, the agency will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for the agency to consider it in developing a final rule (assuming that one is issued), the agency will consider that comment as an informal suggestion for future rulemaking action. How Can I Read the Comments Submitted by Other People? You may read the comments received by Docket Management at the address given above under ADDRESSES. The hours of the Docket are indicated above in the same location. You may also see the comments on the Internet. To read the comments on the Internet, take the following steps: 1. Go to the Docket Management System (DMS) Web page of the Department of Transportation http://dms.dot.gov. 2. On that page, click on ``search.'' 3. On the next page http://dms.dot.gov/search, type in the four- digit docket number shown at the beginning of this document. Example: If the docket number were ``NHTSA-1998-1234,'' you would type ``1234.'' After typing the docket number, click on ``search.'' 4. On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. Although the comments are imaged documents, instead of word processing documents, the ``pdf'' versions of the documents are word searchable. Please note that even after the comment closing date, NHTSA will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, the agency recommends that you periodically check the Docket for new material. VIII. Regulatory Analyses and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is ``significant'' and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a ``significant regulatory action'' as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This proposal was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. If adopted, it would not impose any new burdens on manufacturers of vehicles built in two or more stages or vehicles alterers. Further, if adopted, this proposal would limit certain existing requirements as they apply to multistage vehicles, and exclude a narrow group of multi-stage vehicles manufactured from chassis without occupant compartments from the same requirements. The agency believes that this impact is so minimal as to not warrant the preparation of a full regulatory evaluation. B. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires agencies to evaluate the potential effects of their proposed rules on small businesses, small organizations and small governmental jurisdictions. I have considered the possible effects of this rulemaking action under the Regulatory Flexibility Act and certify that it would not have a significant economic impact on a substantial number of small entities. Under 13 CFR 121.201, the Small Business Administration (SBA) defines small business (for the purposes of receiving SBA assistance) as a business with less than 750 employees. Most of the manufacturers of recreation vehicles, conversion vans, and specialized work trucks are small businesses that alter completed vehicles or manufacture vehicles in two or more stages. While the number of these small businesses potentially affected by this proposal is substantial, the economic impact upon these entities will not be significant because this document proposes to limit certain existing requirements as they apply to multistage vehicles, and exclude a narrow group of multi-stage vehicles manufactured from chassis without occupant compartments from the same requirements. For other multistage manufacturers, recent agency action described above will enable the manufacturers to more fully utilize pass-through certification. C. National Environmental Policy Act NHTSA has analyzed this proposal for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment. Accordingly, no environmental assessment is required. D. Executive Order 13132 (Federalism) The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federal implications to warrant consultation with State and local officials or the preparation of a [[Page 20940]] federalism summary impact statement. The proposal would not have any substantial impact on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials. E. Unfunded Mandates Act The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually ($120.7 million as adjusted annually for inflation with base year of 1995). The assessment may be combined with other assessments, as it is here. This proposal is not likely to result in expenditures by State, local or tribal governments or automobile manufacturers and/or their suppliers of more than $120.7 million annually. If adopted, it would not impose any new burdens on manufacturers of vehicles built in two or more stages or vehicles alterers. Further, if adopted, this proposal would limit certain existing requirements as they apply to multistage vehicles, and exclude a narrow group of multi-stage vehicles manufactured from chassis without occupant compartments from the same requirements. F. Executive Order 12988 (Civil Justice Reform) Pursuant to Executive Order 12988, ``Civil Justice Reform'', \26\ the agency has considered whether this proposed rule would have any retroactive effect. We conclude that it would not have such an effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the State requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file a suit in court. --------------------------------------------------------------------------- \26\ See 61 FR 4729, February 7, 1996. --------------------------------------------------------------------------- G. Paperwork Reduction Act There are no information collection requirements in this proposal. H. Regulation Identifier Number (RIN) The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda. I. Plain Language Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions: Have we organized the material to suit the public's needs? Are the requirements in the rule clearly stated? Does the rule contain technical language or jargon that isn't clear? Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand? Would more (but shorter) sections be better? Could we improve clarity by adding tables, lists, or diagrams? What else could we do to make the rule easier to understand? If you have any responses to these questions, please include them in your comments on this proposal. J. Privacy Act Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov. IX. Proposed Regulatory Text List of Subjects in 49 CFR Part 571 Motor vehicle safety, Reporting and recordkeeping requirements, Tires. In consideration of the foregoing, NHTSA proposes to amend chapter V of title 49 of the Code of Federal Regulations by amending 49 CFR 571.201 to read as follows: PART 571--[AMENDED] 1. The authority citation of part 571 would continue to read as follows: Authority: 49 U.S.C. 322, 2011, 30115, 30166 and 30117; delegation of authority at 49 CFR 1.50. 2. Section 571.201 would be amended by revising S6.1.4, S6.3(b) and S6.3(c) to read as set forth below: Sec. 571.201 Standard No. 201; Occupant protection in interior impact. * * * * * S6.1.4 Phase-in Schedule #4 A final stage manufacturer or alterer may, at its option, comply with the requirements set forth in S6.1.4.1 and S6.1.4.2. S6.1.4.1 Vehicles manufactured on or after September 1, 1998 and before September 1, 2008 are not required to comply with the requirements specified in S7. S6.1.4.2 Vehicles manufactured on or after September 1, 2008 shall comply with the requirements specified in S7. * * * * * S6.3 * * * (b) Any target located rearward of a vertical plane 600 mm behind the seating reference point of the rearmost designated seating position. For altered vehicles and vehicles built in two or more stages, including ambulances and motor homes, any target located rearward of a vertical plane 300 mm behind the seating reference point of the driver's designated seating position. (c) Any target in a walk-in van-type vehicle or a vehicle manufactured in two or more stages that is delivered to a final stage manufacturer without an occupant compartment. Note: Motor homes, ambulances, and other vehicles manufactured using a chassis cab, a cut-away van, or any other incomplete vehicle delivered to a final stage manufacturer with a furnished front compartment are not excluded under this paragraph. * * * * * Issued on April 18, 2006. Ronald L. Medford, Senior Associate Administrator for Vehicle Safety. [FR Doc. E6-6024 Filed 4-21-06; 8:45 am] BILLING CODE 4910-59-P

usgpo

2024-10-08T14:08:33.541507

FR

FR-2006-04-24/E6-6106

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Page 20941] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6106] [[Page 20941]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR PART 223 [I.D. 041706C] RIN 0648-AU10 Sea Turtle Conservation; Public Hearing Notification AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public hearing. ----------------------------------------------------------------------- SUMMARY: The National Marine Fisheries Service (NMFS) is announcing its intent to hold a public hearing to inform interested parties of the proposed modifications to Federal regulations affecting pound net leaders in the Virginia Chesapeake Bay and to accept public comments on this action. DATES: NMFS will hold a public hearing at the Double Tree Hotel Virginia Beach, on Wednesday, April 26, 2006, at 7 p.m., eastern daylight time. ADDRESSES: The Double Tree Hotel Virginia Beach is located at 1900 Pavilion Drive, Virginia Beach, VA 23451 (ph..757-422-8900). Written comments on this action may be submitted on this proposed rule, identified by RIN 0648-AU10, by any one of the following methods: (1) E-mail: [email protected]. Please include the RIN 0648-AU10 in the subject line of the message. (2) Federal eRulemaking Portal: http://www.regulations.gov. Follow the instruction on the website for submitting comments. (3) NMFS/Northeast Region Website: http://www.nero.noaa.gov/nero/regs/com.html. Follow the instructions on the website for submitting comments. (4) Mail: Mary Colligan, Assistant Regional Administrator for Protected Resources, NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930, ATTN: Sea Turtle Conservation Measures, Proposed Rule (5) Facsimile (fax): 978-281-9394, ATTN: Sea Turtle Conservation Measures, Proposed Rule FOR FURTHER INFORMATION CONTACT: Pasquale Scida (ph. 978-281-9208), NMFS, One Blackburn Drive, Gloucester, MA 01930. SUPPLEMENTARY INFORMATION: A proposed rule was issued on April 17, 2006 (73 FR 19675), which proposes revisions to current regulations. The proposed rule would require any offshore pound net set in Pound Net Regulated Area I in the Virginia waters of the Chesapeake Bay to use a modified pound net leader from May 6 to July 15 each year. This action, taken under the Endangered Species Act of 1973 (ESA), responds to new information generated by gear research and aims to conserve sea turtles listed as threatened or endangered. Additional information on the justification for this action can be found in that proposed rule. NMFS recognizes the need and importance to obtain public comment on the proposed action. In addition to the April 26 meeting announced in this document, NMFS is accepting written comments on the proposed action. Written comments on the proposed rule or requests for copies of the literature cited, the draft Environmental Assessment, or Regulatory Impact Review and Initial Regulatory Flexibility Analysis should be addressed to the Assistant Regional Administrator for Protected Resources, NMFS, One Blackburn Drive, Gloucester, MA 01930. Comments and requests for supporting documents may be sent via fax to 978-281- 9394. Comments will be accepted via email at [email protected] and via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instruction on the website for submitting comments. The public comment period closes at 5 p.m., eastern daylight time, on May 1, 2006. In preparing the final rule for this action, NMFS will fully consider the public comments received during the 15-day comment period (either in writing or verbally during the public hearing). Special Accommodations This meeting is accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Pasquale Scida, telephone 978-281-3928 x9208, fax 978-281- 9394, at least five days before the scheduled meeting date. Authority: 16 U.S.C. 1531 et seq. Dated: April 19, 2006. James H. Lecky, Director, Office Protected Resources, National Marine Fisheries Service. [FR Doc. E6-6106 Filed 4-21-06; 8:45 am] BILLING CODE 3510-22-S

usgpo

2024-10-08T14:08:33.570331

FR

FR-2006-04-24/06-3838

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20941-20965] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3838] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 060330090-6090-01, I.D. 021506B] RIN 0648-AU19 List of Fisheries for 2006 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The National Marine Fisheries Service (NMFS) is publishing the proposed List of Fisheries (LOF) for 2006, as required by the Marine Mammal Protection Act (MMPA). The proposed LOF for 2006 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must categorize each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of serious injury and mortality of marine mammals that occurs incidental to each fishery. The categorization of a fishery in the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. DATES: Comments must be received by May 24, 2006. ADDRESSES: Send comments to Chief, Marine Mammal Conservation Division, Attn: List of Fisheries, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may also be sent via email to [email protected] or to the Federal eRulemaking portal: http://www.regulations.gov (follow instructions for submitting comments). Comments regarding the burden-hour estimates, or any other aspect of the collection of information requirements contained in this proposed rule, should be submitted in writing to the Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 and to David Rostker, OMB, by e-mail at [email protected] or by fax to 202-395-7285. See SUPPLEMENTARY INFORMATION for a list of regional offices where registration information, materials, and marine mammal reporting forms may be obtained. [[Page 20942]] FOR FURTHER INFORMATION CONTACT: Kristy Long, Office of Protected Resources, 301-713-1401; David Gouveia, Northeast Region, 978-281-9328; Juan Levesque, Southeast Region, 727-570-5312; Cathy Campbell, Southwest Region, 562-980-4060; Brent Norberg, Northwest Region, 206- 526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van Atta, Pacific Islands Region, 808-973-2937. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays. SUPPLEMENTARY INFORMATION: Regional Offices NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930- 2298, Attn: Marcia Hobbs; NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Teletha Mincey; NMFS, Southwest Region, Sustainable Fisheries Division, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Lyle Enriquez; NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115, Attn: Permits Office; NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9\th\ Street, Juneau, AK 99802; or NMFS, Pacific Islands Region, Protected Resources Division, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814-4700. What is the List of Fisheries? Section 118 of the MMPA requires that NMFS place all U.S. commercial fisheries into one of three categories based on the level of incidental serious injury and mortality of marine mammals that occurs in each fishery (16 U.S.C. 1387 (c)(1)). The categorization of a fishery in the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, consider new information in the Stock Assessment Reports, other relevant sources, and the LOF, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(3)). How Does NMFS Determine in which Category a Fishery is Placed? The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here. Fishery Classification Criteria The fishery classification criteria consist of a two-tiered, stock- specific approach that first addresses the total impact of all fisheries on each marine mammal stock, and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the Potential Biological Removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 at 50 CFR 229.2 Tier 1: If the total annual mortality and serious injury across all fisheries that interact with a stock is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock would be placed in Category III. Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification. Tier 2, Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level. Tier 2, Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level. Tier 2, Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level. While Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock, Tier 2 considers fishery-specific mortality and serious injury for a particular stock. Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995). Since fisheries are categorized on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically categorized on the LOF at its highest level of classification (e.g., a fishery that qualifies for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Other Criteria That May Be Considered In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental serious injury or mortality qualifies for Category II by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries (50 CFR 229.2). How Do I Find Out if a Specific Fishery is in Category I, II, or III? This proposed rule includes two tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the fisheries in the Pacific Ocean (including Alaska). Table 2 lists all of the fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean. Am I Required to Register Under the MMPA? Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization from NMFS in order to lawfully incidentally take a marine mammal in a commercial fishery. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization. How Do I Register? Fishers must register with the Marine Mammal Authorization Program (MMAP) by contacting the relevant NMFS Regional Office (see ADDRESSES) unless they participate in a fishery that has an integrated registration program (described below). Upon receipt of a completed registration, NMFS will issue vessel or gear owners physical evidence of a current and valid registration that must be displayed or in the possession of the master of each vessel while fishing in accordance with section 118 of the MMPA (16 U.S.C. 1387(c)(3)(A)). What is the Process for Registering in an Integrated Fishery? For some fisheries, NMFS has integrated the MMPA registration process with existing state and Federal fishery license, registration, or permit [[Page 20943]] systems and related programs. Participants in these fisheries are automatically registered under the MMPA and are not required to submit registration or renewal materials or pay the $25 registration fee. The following is a list of integrated fisheries and a summary of the integration process for each Region. Fishers who operate in an integrated fishery and have not received registration materials should contact their NMFS Regional Office (see ADDRESSES). Which Fisheries Have Integrated Registration Programs? The following fisheries have integrated registration programs under the MMPA: 1. All Alaska Category II fisheries; 2. All Washington and Oregon Category II fisheries; 3. Northeast Regional fisheries for which a state or Federal permit is required. Individuals fishing in fisheries for which no state or Federal permit is required must register with NMFS by contacting the Northeast Regional Office (see ADDRESSES); and 4. Southeast Regional fisheries for which a state or Federal permit is required. Southeast Regional fisheries include all North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, and Puerto Rico fisheries. Individuals fishing in fisheries for which no state or Federal permit is required, must register with NMFS by contacting the Southeast Regional Office (see ADDRESSES). 5. The Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic Sharks Longline/Set line Fishery. How Do I Renew My Registration Under the MMPA? Regional Offices, except for the Northeast and Southeast Regions, annually send renewal packets to participants in Category I or II fisheries that have previously registered; however, it is the responsibility of the fisher to ensure that registration or renewal forms are completed and submitted to NMFS at least 30 days in advance of fishing. Individuals who have not received a renewal packet by January 1 or are registering for the first time should request a registration form from the appropriate Regional Office (see ADDRESSES). Am I Required to Submit Reports When I Injure or Kill a Marine Mammal During the Course of Commercial Fishing Operations? In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or fisher (in the case of non-vessel fisheries), participating in a Category I, II, or III fishery must report all incidental injuries or mortalities of marine mammals that occur during commercial fishing operations to NMFS. ``Injury'' is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the absence of any wound or other evidence of an injury, and must be reported. Instructions on how to submit reports can be found in 50 CFR 229.6. Am I Required to Take an Observer Aboard My Vessel? Fishers participating in a Category I or II fishery are required to accommodate an observer aboard vessel(s) upon request. Observer requirements can be found in 50 CFR 229.7. Am I Required to Comply With Any Take Reduction Plan Regulations? Fishers participating in a Category I or II fishery are required to comply with any applicable take reduction plans. Sources of Information Reviewed for the Proposed 2006 LOF NMFS reviewed the marine mammal incidental serious injury and mortality information presented in the Stock Assessment Reports (SARs) for all observed fisheries to determine whether changes in fishery classification were warranted. NMFS' SARs are based on the best scientific information available at the time of preparation for the information presented in the SARs, including the level of serious injury and mortality of marine mammals that occurs incidental to commercial fisheries and the PBR levels of marine mammal stocks. NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports, and other information that is not included in the SARs. The information contained in the SARs is reviewed by regional scientific review groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on population status and trends, stock structure, uncertainties in the science, research needs, and other issues. The proposed LOF for 2006 was based, among other things, on information provided in the final SARs for 1996 (63 FR 60, January 2, 1998), the final SARs for 2001 (67 FR 10671, March 8, 2002), the final SARs for 2002 (68 FR 17920, April 14, 2003), the final SARs for 2003 (69 FR 54262, September 8, 2004), the final SARs for 2004 (70 FR 35397, June 20, 2005), and the draft SARs for 2005 (70 FR 37091, June 28, 2005). Summary of Changes to the Proposed LOF for 2006 The following summarizes changes in fishery classification including fisheries listed on the LOF, the number of participants in a particular fishery, and the species and/or stocks that are incidentally killed or seriously injured in a particular fishery that are proposed for the 2006 LOF. The placement and definitions of U.S. commercial fisheries proposed for 2006 are identical to those provided in the LOF for 2005 with the exceptions provided below. Commercial Fisheries in the Pacific Ocean: Fishery Classification NMFS proposes to reclassify the AK Bering Sea and Aleutian Islands Greenland turbot longline fishery from Category II to Category III. The 2005 LOF reclassified this fishery based on a mortality of a killer whale (stock unknown) that occurred in 1999. This observed mortality extrapolated to an estimated mortality level of 3 animals in 1999, and a 5-year average of 0.6 killer whales per year for 1999-2003. In 2004, there were no serious injuries or mortalities of this species in the Greenland turbot longline fishery. When possible, fishery classifications are based on the most recent 5 years of data for a commercial fishery. Thus for the years 2000-2004, the 5-year average level of serious injury and mortality of killer whales incidental to this fishery is zero. This fishery is regularly observed by the Alaska Fisheries Science Center North Pacific Groundfish Observer Program and NMFS expects that future serious injuries and mortalities of killer whales would be detected by the program. Therefore, NMFS proposes to reclassify this fishery from Category II to Category III. NMFS proposes to reclassify the CA sardine purse seine fishery from Category III to Category II. This fishery includes all vessels using purse seine gear to target sardine off of the coast of California. Most fishing occurs off of southern California, and occurs year-round. Fishing within 3 nautical miles of shore is prohibited by state law. NMFS began placing observers onboard CA sardine purse seine vessels in 2004 to collect information regarding the fishery's potential to interact with marine mammals. Observers have [[Page 20944]] documented entanglements of California sea lions in this fishery. In addition, this fishery uses similar gear and fishing techniques to other Category II purse seine fisheries (e.g., CA anchovy) known to seriously injure or kill marine mammals. Therefore, NMFS is proposing to reclassify this fishery to Category II based on analogy as provided in 50 CFR 229.2. Addition of Fisheries to the LOF NMFS proposes to add the ``American Samoa longline fishery'' to the LOF as a Category III fishery. The fishery has 138 participants. There are no documented marine mammal injuries or mortalities incidental to this fishery. NMFS is initiating a fishery observer program in this fishery in early 2006 and will reevaluate this fishery's classification when new information becomes available. NMFS proposes to add the ``Western Pacific squid jig fishery'' to the LOF as a Category III fishery. There are no documented marine mammal serious injuries or mortalities incidental to this fishery. The fishery has 6 participants. This fishery is a Japanese-style jig fishery that operates at night by attracting squid with a light source. In the U.S. Pacific squid jigging fishery, bycatch of marine mammals is purported to be extremely small; if marine mammals are hooked, they would break the relatively weak squid lines before being brought to the boat. A similar fishery operates in the waters near Southern Australia. A draft Bycatch Action Plan was prepared for this fishery by the Australian Fisheries Management Authority in 2003. The report states that a ``global assessment of bycatch and discards across world fisheries found that squid jigging is a highly selective fishing method''. Because of the high selectivity of this fishery and a lack of reliable information regarding marine mammal bycatch in this fishery, NMFS proposes to add this fishery to the LOF in Category III. NMFS proposes to add the ``HI Kona crab loop net fishery'' with 42 participants to the LOF as a Category III fishery. The fishery is conducted using baited loop nets above sandy substrate and is constantly tended by fishers. No marine mammal injuries or mortalities in this fishery have been documented. Therefore, NMFS proposes to add this fishery as a Category III fishery. NMFS proposes to add the ``HI offshore pen culture fishery'' to the LOF as a Category III fishery. The fishery has 2 participants. There have been no documented marine mammal serious injuries or mortalities incidental to this fishery. NMFS proposes to add the ``CA marine shellfish aquaculture fishery'' to the LOF as a Category III fishery. This fishery includes a variety of target species and gear types including: clams (cultured either via ground or bag culture), oysters (cultured via bag, rack and bag, longline, stake, bottom culture, or suspended culture), scallops (cultured via offshore tray-based systems), and mussels (cultured via suspension from rafts or surface longlines in the subtidal zone). NMFS does not currently have any information regarding the number of participants in this fishery and there have been no documented marine mammal serious injuries or mortalities incidental to this fishery. NMFS proposes to add the ``CA white seabass enhancement net pen fishery'' to the LOF as a Category III fishery. The fishery consists of a total of 13 enhancement net pens from Santa Barbara to San Diego, CA that are used as grow-out facilities for juvenile white seabass before release. The pens consist of large, supported nets or fiberglass raceways. The raceways are large rectangular fiberglass structures with open ends covered by steel mesh and steel predator barriers. The pens vary in depth from 4-5 ft (1.22-1.52 m) and accommodate 2,000 to 5,000 fish. There have been two observed mortalities of the U.S. stock of California sea lions in this fishery. There are 13 participants in this fishery as each pen represents a participant. Removal of Fisheries from the LOF NMFS proposes to remove the ``HI net unclassified fishery'' from the LOF. Since implementation of new and revised reporting forms, fishers report specific net gear used. Therefore, this fishery as currently listed on the LOF is no longer appropriate. Fishery Name and Organizational Changes and Clarifications NMFS proposes to modify the name of the ``HI tuna fishery'' to the ``HI tuna handline fishery'' to better reflect the gear type used in this fishery. NMFS proposes to modify the name of the ``HI deep sea bottomfish fishery'' to the ``HI Main Hawaiian Islands and Northwest Hawaiian Islands deep sea bottomfish fishery''. NMFS proposes to modify the name of the ``HI coral diving fishery'' to the ``HI black coral diving fishery'' to represent the target species in this fishery. NMFS proposes to modify the name of the ``HI other fishery'' to the ``HI charter vessel fishery''. Number of Vessels/Persons NMFS proposes to update the estimated number of participants in the Hawaii gillnet fishery from 115 to 35. NMFS proposes to update the estimated number of participants in the Hawaii opelu/akule net fishery from 16 to 12. NMFS proposes to update the estimated number of participants in the Hawaii purse seine fishery from 18 to 23. NMFS proposes to update the estimated number of participants in the Hawaii fish pond fishery to N/A as the fishery is currently not operating. NMFS is retaining this fishery on the LOF as there may be participants in the near future. NMFS proposes to update the estimated number of participants in the Hawaii throw net, cast net fishery from 47 to 14. NMFS proposes to update the estimated number of participants in the Hawaii trolling, rod and reel fishery from 1,795 to 1,321. NMFS proposes to update the estimated number of participants in the Hawaii lobster trap fishery to 0 as the fishery is currently inactive. However, 14 permits are available if this fishery reopened. NMFS proposes to update the number of participants in the Hawaii aku boat, pole and line fishery from 54 to 4. NMFS proposes to update the number of participants in the Hawaii inshore handline fishery from 650 to 307. NMFS proposes to update the number of participants in the Hawaii tuna handline fishery (proposed name change from the ``Hawaii tuna'' fishery, see Fishery Name and Organizational Changes and Clarifications section) from 144 to 298. NMFS proposes to update the number of participants in the HI main Hawaiian Islands and Northwest Hawaiian Islands deep sea bottomfish fishery (proposed name change from the ``HI deep sea bottomfish fishery'', see Fishery Name and Organizational Changes and Clarifications section) from 434 to 387. NMFS proposes to update the number of participants in the HI black coral diving fishery (proposed name change from the ``HI coral diving fishery'', see Fishery Name and Organizational Changes and Clarifications section) from 2 to 1. NMFS proposes to update the number of participants in the HI handpick fishery from 135 to 37. [[Page 20945]] NMFS proposes to update the number of participants in the HI lobster diving fishery from 6 to 19. NMFS proposes to update the number of participants in the HI squiding, spear fishery from 267 to 91. NMFS proposes to update the number of participants on the AK BSAI Greenland turbot longline fishery from 36 to 12. List of Species That are Incidentally Injured or Killed NMFS proposes to add common dolphins to the list of marine mammal species and stocks incidentally injured or killed by the California squid purse seine fishery. An observer documented a mortality of a common dolphin (stock unknown) in 2005. NMFS proposes to add the Hawaiian stocks of Blaineville's beaked whales and Pantropical spotted dolphins to the list of marine mammal species and stocks incidentally injured or killed by the Hawaii swordfish, tuna, billfish, mahi mahi, wahoo, and oceanic sharks longline/set line fishery. Serious injuries and mortalities of these stocks incidental to this fishery were documented by fisheries observers. NMFS proposes to delete the Hawaiian stock of bottlenose dolphins from the list of marine mammal species and stocks incidentally injured or killed by the Hawaii inshore handline fishery as no interactions have been documented between this stock and the fishery within the last 5 years. NMFS proposes to delete the Hawaiian stocks of bottlenose dolphins and rough tooth dolphins from the list of marine mammal species and stocks incidentally injured or killed by the Hawaii tuna handline fishery (proposed name change from ``Hawaii tuna fishery'', see Fishery Name and Organizational Changes and Clarifications section) as no interactions have been documented between these stocks and this fishery within the last 5 years. NMFS proposes to correct some errors in the list of marine mammal species and stocks incidentally injured or killed incidental to the CA/ OR thresher shark/swordfish drift gillnet fishery. Specifically, NMFS proposes to change the CA/OR/WA Pacific coast stock to the Eastern North Pacific offshore stock of killer whales and the CA/OR/WA stock to the CA stock of long-beaked common dolphins. Additionally, NMFS proposes to combine the Northern and Southern species of Pacific white- sided dolphins to reflect how these species are currently characterized in the SARs. NMFS proposes to correct some errors in the list of marine mammal species and stocks incidentally injured or killed incidental to the WA, OR, CA groundfish trawl fishery. Specifically, NMFS proposes to change the Central North Pacific stock to the CA/OR/WA stock of Pacific white- sided dolphins and the Western stock to the Eastern stock of Steller sea lions. Alaska Fisheries The 2004 LOF revised the Federally managed fisheries in Alaska into more discrete fisheries according to area, gear, and target species in order to more accurately reflect the fisheries as managed under Federal Fishery Management Plans. At that time, the marine mammal stocks associated with the newly delineated fisheries in the LOF were not revised accordingly. NMFS proposes to include the following marine mammal stocks that have had documented injuries or mortalities in the following Federal fisheries as listed in this proposed rule. NMFS proposes to add the Eastern North Pacific stock of Northern fur seals, the Bering Sea stocks of harbor porpoise and harbor seals, and the Alaska stocks of bearded seals, spotted seals, and walruses to the list of marine mammal species and stocks injured or killed incidental to the AK BSAI flatfish trawl fishery. NMFS proposes to add the Bering Sea stock of harbor seals and the Alaska stocks of Dall's porpoise, minke whales, ribbon seals, and spotted seals to the list of marine mammal species and stocks injured or killed incidental to the AK BSAI pollock trawl fishery. NMFS proposes to add the Alaska stock of ribbon seals and the Western U.S. stock of Steller sea lions to the list of marine mammal species and stocks injured or killed incidental to the AK BSAI Pacific cod longline fishery. NMFS proposes to add the Eastern U.S. stock of Steller sea lions and the North Pacific stock of sperm whales to the list of marine mammal species and stocks injured or killed incidental to the AK GOA sablefish longline fishery. NMFS proposes to add the Western U.S. stock of Steller sea lions and the Bering Sea stock of harbor seals to the list of marine mammal species and stocks injured or killed incidental to the AK BSAI Pacific cod trawl fishery. NMFS proposes to add the Western U.S. stock of Steller sea lions to the list of marine mammal species and stocks injured or killed incidental to the AK GOA Pacific cod trawl fishery. NMFS proposes to add the Western U.S. stock of Steller sea lions, the Northeast Pacific stock of fin whales, and the North Pacific stock of Northern elephant seals to the list of marine mammal species and stocks injured or killed incidental to the AK GOA pollock trawl fishery. NMFS proposes to add the GOA stock of harbor seals to the list of marine mammal species and stocks injured or killed incidental to the AK GOA Pacific cod pot fishery. NMFS proposes to add the Eastern and Western U.S. stocks of Steller sea lions and an unknown stock of killer whales to the list of marine mammal species and stocks injured or killed incidental to the AK, WA, OR, CA commercial passenger fishing vessel fishery. NMFS proposes to add the Central North Pacific (Southeast AK) stock of humpback whales to the list of marine mammal species and stocks injured or killed incidental to the AK Southeast Alaska crab pot fishery. NMFS proposes to add the Central North Pacific (Southeast AK) stock of humpback whales to the list of marine mammal species and stocks injured or killed incidental to the AK Southeast Alaska shrimp pot fishery. NMFS proposes to add the Central North Pacific (Southeast AK) stock of humpback whales to the list of marine mammal species and stocks injured or killed incidental to the AK Yakutat salmon set gillnet fishery. NMFS proposes to add the Western U.S. stock of Steller sea lions to the list of marine mammal species and stocks injured or killed incidental to the AK Kodiak salmon set gillnet fishery. NMFS proposes to delete the Eastern North Pacific transient stock of killer whales from the list of marine mammals species and stocks injured or killed in the Alaska BSAI flatfish trawl fishery. Because NMFS did not have information regarding which stock was injured or killed incidental to this fishery, both the Eastern North Pacific transient and resident stocks of killer whales were listed in the 2005 LOF as interacting with this fishery. However, since publication of the 2005 LOF, NMFS has obtained the results of genetic analysis on the biopsy samples taken from killer whales seriously injured or killed in this fishery. The results indicate that the fishery interacted with the resident stock of Eastern North Pacific killer whales. Therefore, NMFS proposes to remove the stock (transient) that did not interact with this fishery. NMFS proposes to delete the Eastern North Pacific resident stock of killer whales from the list of marine mammals species and stocks incidentally injured or killed in the Alaska BSAI pollock trawl fishery. Because NMFS did not have information regarding which stock [[Page 20946]] was injured or killed incidental to this fishery, both the Eastern North Pacific transient and resident stocks of killer whales were listed in the 2005 LOF as interacting with this fishery. However, since publication of the 2005 LOF, NMFS has obtained the results of genetic analysis on the biopsy samples taken from killer whales seriously injured or killed in this fishery. These results indicate that the fishery interacted with the transient stock of Eastern North Pacific killer whales. Therefore, NMFS proposes to remove the stock (resident) that did not interact with this fishery. Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean: Fishery Classification NMFS proposes to reclassify the Chesapeake Bay inshore gillnet fishery from Category III to Category II based on its potential to seriously injure or kill the Western North Atlantic stock of bottlenose dolphins. Bottlenose dolphins are known to use the entire Chesapeake Bay, including waters landward of the Chesapeake Bay Bridge-Tunnel. Since the Chesapeake Bay inshore gillnet fishery is currently a Category III fishery, observer coverage is not required; therefore, no marine mammal interactions with this fishery have been documented. However, serious injuries and mortalities of the Western North Atlantic stock of bottlenose dolphins have been documented in similar gillnet fisheries in the Mid-Atlantic, such as the Mid-Atlantic gillnet fishery and the North Carolina inshore gillnet fishery, both of which are currently Category II fisheries. Reclassifying the Chesapeake Bay inshore gillnet fishery to Category II will allow NMFS to characterize marine mammal interactions with this fishery through the observer program. Based on the potential overlap in distribution of the Western North Atlantic stock of bottlenose dolphins and this fishery, in addition to documented serious injuries and mortalities in similar gillnet gear, NMFS proposes to reclassify this fishery to Category II based on analogy as provided in 50 CFR 229.2. NMFS proposes to reclassify the Mid-Atlantic menhaden purse seine fishery from Category III to Category II based on its potential to seriously injure or kill the Western North Atlantic stock of bottlenose dolphins. Since this fishery is currently a Category III fishery, observer coverage is not required; therefore, no marine mammal interactions with this fishery have been documented. However, according to the most recent stock assessment of the Western North Atlantic stock of bottlenose dolphins, menhaden purse seiners have reported annual interactions of one to five bottlenose dolphins. In addition, the Gulf of Mexico menhaden purse seine fishery is classified as a Category II fishery based on documented bycatch of several bottlenose dolphin stocks, including the Northern, Eastern, and Western Gulf of Mexico coastal stocks, and the Gulf of Mexico bay, sound, and estuarine stock. Elevating this fishery to Category II will allow NMFS to characterize marine mammal interactions with this fishery through the observer program. Based on documented bycatch of bottlenose dolphins in purse seine gear, NMFS proposes to reclassify this fishery in Category II. Addition of Fisheries to the LOF NMFS proposes to add the ``Southeast Atlantic inshore gillnet fishery'' to the LOF as a Category III fishery. This fishery typically targets shad and river herring in inshore rivers and bays (inside the COLREGS lines). Despite the lack of adequate observer coverage in this fishery, NMFS has no evidence to suggest that there is more than a remote likelihood of marine mammal serious injuries or mortalities incidental to this fishery. The number of participants in this fishery is unknown. List of Species That are Incidentally Injured or Killed NMFS proposes to remove the Western North Atlantic stock of fin whales from the list of marine mammal species and stocks incidentally injured or killed incidental to the Mid-Atlantic gillnet fishery. NMFS added this stock in the 2005 LOF and has since confirmed that the NMFS observer program does not have a documented interaction between this stock and this fishery. NMFS proposes to add several bottlenose dolphin stocks to the list of marine mammal species and stocks incidentally injured or killed incidental to the Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel fishery based on anecdotal reports of dolphins interacting with hook and line gear in both the Atlantic and Gulf of Mexico. These bottlenose dolphin stocks include the Western North Atlantic coastal, Eastern Gulf of Mexico coastal, Northern Gulf of Mexico coastal, and Western Gulf of Mexico coastal. NMFS proposes to remove the Western North Atlantic offshore stock of bottlenose dolphins and the Western North Atlantic stock of striped dolphins from the list of marine mammal species and stocks injured or killed incidental to the Northeast bottom trawl fishery because NMFS has not documented any serious injuries or mortalities of these stocks incidental to this fishery in the past 5 years. Fishery Name and Organizational Changes and Clarifications Southeast Atlantic Gillnet Fishery NMFS proposes to expand the list of target species associated with the ``Southeast Atlantic gillnet fishery''. In the 2001 LOF (66 FR 42780, August 15, 2001), NMFS renamed all southeastern Atlantic gillnet fisheries (except the Southeastern U.S. Atlantic shark gillnet fishery) as the ``Southeast Atlantic gillnet fishery'', and elevated this fishery from Category III to Category II. This fishery designation included fisheries identified in previous LOFs as the ``Florida East Coast pelagics king and Spanish mackerel gillnet fishery'' and the ``Southeast U.S. Atlantic coastal shad, sturgeon gillnet fishery''. In 2006, NMFS received information from the Florida Fish and Wildlife Commission's trip ticket database that landings from 2002-2005 using gillnet gear on the east coast of Florida also include landings of whiting, bluefish, pompano, spot, croaker, little tunny, bonita, jack crevalle, and cobia, in addition to king and Spanish mackerel and shad. These species are targeted using both pelagic and demersal gillnet gear, each of which poses similar risks of entanglement to marine mammals. Therefore, NMFS proposes to expand the list of fish species associated with the ``Southeast Atlantic gillnet fishery'' to include the following target species: king mackerel, Spanish mackerel, whiting, bluefish, pompano, spot, croaker, little tunny, bonita, jack crevalle, and cobia. Atlantic sturgeon are listed as a species of concern under the Endangered Species Act and are also managed under a fishery management plan; a moratorium on possession and harvest of this species currently exists throughout the U.S. East Coast. Additionally, fishing for shad in ocean waters is prohibited by Southeast coastal states and is therefore no longer included as a target species of the Southeast Atlantic gillnet fishery. List of Fisheries The following two tables list U.S. commercial fisheries according to their assigned categories under section 118 of the MMPA. The estimated number of vessels/participants is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a [[Page 20947]] particular fishery is provided. If no recent information is available on the number of participants in a fishery, the number from the most recent LOF is used. The tables also list the marine mammal species and stocks that are incidentally killed or injured in each fishery based on observer data, logbook data, stranding reports, and fisher reports. This list includes all species or stocks known to experience injury or mortality in a given fishery, but also includes species or stocks for which there are anecdotal records of interaction. Additionally, species identified by logbook entries may not be verified. Not all species or stocks identified are the reason for a fishery's placement in a given category. NMFS has designated those stocks that are responsible for a current fishery's classification by a ``\1\''. There are several fisheries classified in Category II that have no recently documented interactions with marine mammals. Justifications for placement of these fisheries are by analogy to other gear types that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a ``Category II fishery'' in 50 CFR 229.2. NMFS has designated those fisheries originally listed by analogy in Tables 1 and 2 by a ``2'' after that fishery's name. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean. BILLING CODE 3510-22-S [[Page 20948]] [GRAPHIC] [TIFF OMITTED] TP24AP06.000 [[Page 20949]] [GRAPHIC] [TIFF OMITTED] TP24AP06.001 [[Page 20950]] [GRAPHIC] [TIFF OMITTED] TP24AP06.002 [[Page 20951]] [GRAPHIC] [TIFF OMITTED] TP24AP06.003 [[Page 20952]] [GRAPHIC] [TIFF OMITTED] TP24AP06.004 [[Page 20953]] [GRAPHIC] [TIFF OMITTED] TP24AP06.005 [[Page 20954]] [GRAPHIC] [TIFF OMITTED] TP24AP06.006 [[Page 20955]] [GRAPHIC] [TIFF OMITTED] TP24AP06.007 [[Page 20956]] [GRAPHIC] [TIFF OMITTED] TP24AP06.008 [[Page 20957]] [GRAPHIC] [TIFF OMITTED] TP24AP06.009 [[Page 20958]] [GRAPHIC] [TIFF OMITTED] TP24AP06.010 [[Page 20959]] [GRAPHIC] [TIFF OMITTED] TP24AP06.011 [[Page 20960]] [GRAPHIC] [TIFF OMITTED] TP24AP06.012 [[Page 20961]] [GRAPHIC] [TIFF OMITTED] TP24AP06.013 [[Page 20962]] [GRAPHIC] [TIFF OMITTED] TP24AP06.014 [[Page 20963]] [GRAPHIC] [TIFF OMITTED] TP24AP06.015 [[Page 20964]] [GRAPHIC] [TIFF OMITTED] TP24AP06.016 [[Page 20965]] [GRAPHIC] [TIFF OMITTED] TP24AP06.017 BILLING CODE 3510-22-C Classification The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule would not have a significant economic impact on a substantial number of small entities. For convenience, the factual basis leading to the certification is repeated below. Under existing regulations, all fishers participating in Category I or II fisheries must register under the MMPA, obtain an Authorization Certificate, and pay a fee of $25. Additionally, fishers may be subject to a take reduction plan and requested to carry an observer. The Authorization Certificate authorizes the taking of marine mammals incidental to commercial fishing operations. NMFS has estimated that approximately 41,730 fishing vessels, most of which are small entities, operate in Category I or II fisheries, and therefore, are required to register. However, registration has been integrated with existing state or Federal registration programs for the majority of these fisheries so that the majority of fishers do not need to register separately under the MMPA. Currently, approximately 500 fishers register directly with NMFS under the MMPA authorization program. Though this proposed rule would affect approximately 500 small entities, the $25 registration fee, with respect to anticipated revenues, is not considered a significant economic impact. If a vessel is requested to carry an observer, fishers will not incur any economic costs associated with carrying that observer. As a result of this certification, an initial regulatory flexibility analysis was not prepared. In the event that reclassification of a fishery to Category I or II results in a take reduction plan, economic analyses of the effects of that plan will be summarized in subsequent rulemaking actions. Further, if a vessel is requested to carry an observer, fishers will not incur any economic costs associated with carrying that observer. This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act. The collection of information for the registration of fishers under the MMPA has been approved by the Office of Management and Budget (OMB) under OMB control number 0648- 0293 (0.15 hours per report for new registrants and 0.09 hours per report for renewals). The requirement for reporting marine mammal injuries or moralities has been approved by OMB under OMB control number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these reporting burden estimates or any other aspect of the collections of information, including suggestions for reducing burden, to NMFS and OMB (see ADDRESSES). Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. This proposed rule has been determined to be not significant for the purposes of Executive Order 12866. An environmental assessment (EA) was prepared under the National Environmental Policy Act (NEPA) for regulations to implement section 118 of the MMPA (1995 EA). NMFS revised that EA relative to classifying U.S. commercial fisheries on the LOF in December 2005. Both the 1995 and 2005 EA concluded that implementation of MMPA section 118 regulations would not have a significant impact on the human environment. This proposed rule would not make any significant change in the management of reclassified fisheries, and therefore, this proposed rule is not expected to change the analysis or conclusion of the 2005 EA. If NMFS takes a management action, for example, through the development of a Take Reduction Plan (TRP), NMFS will first prepare an environmental document, as required under NEPA, specific to that action. This proposed rule would not affect species listed as threatened or endangered under the Endangered Species Act (ESA) or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this proposed rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would conduct consultation under ESA section 7 for that action. This proposed rule would have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs or take reduction teams. This proposed rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act. Dated: April 18, 2006. John Oliver, Deputy Assistant Administrator for Operations, national Marine Fisheries Service. [FR Doc. 06-3838 Filed 4-21-06; 8:45 am] BILLING CODE 3510-22-S

usgpo

2024-10-08T14:08:33.592507

FR

FR-2006-04-24/E6-6030

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Proposed Rules] [Pages 20966-20968] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6030] [[Page 20966]] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 680 [Docket No.: 060404093-6093-01; I.D. 033106A] RIN 0648-AU24 Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Bering Sea and Aleutian Islands King and Tanner Crab Fishery Resources AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. ----------------------------------------------------------------------- SUMMARY: NMFS proposes changes to the regulations implementing the Crab Rationalization Program. This action is necessary to correct two discrepancies in the scope of the sideboard protections for Gulf of Alaska (GOA) groundfish fisheries provided in a previous rulemaking. Specifically, this action would remove the sideboard restrictions from vessels that did not generate Bering Sea snow crab (Chionoecetes opilio) quota share and would apply the sideboards to federally permitted vessels operating in the State of Alaska (State) parallel fisheries. This proposed rule is intended to promote the goals and objectives of the Fishery Management Plan for Bering Sea/Aleutian Islands (BSAI) King and Tanner Crabs (FMP), the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and other applicable law. DATES: Written comments must be received no later than May 9, 2006. ADDRESSES: Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Records Administrator. Comments may be submitted by: Mail: P.O. Box 21668, Juneau, AK 99802. Hand Delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK. Fax: 907-586-7557. E-mail: [email protected]. Include in the subject line of the e-mail the following document identifier: GOA sideboards. E-mail comments, with or without attachments, are limited to 5 megabytes. Webform at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at that site for submitting comments. Copies of the regulatory impact review/initial regulatory flexibility analysis (RIR/IRFA), prepared for this action and copies of the Bering Sea Aleutian Islands Crab Fisheries Final Environmental Impact Statement/Regulatory Impact Review/Initial Regulatory Flexibility Analysis/Social Impact Assessment (EIS/RIR/IRFA/SIA) prepared for the Crab Rationalization Program are available from NMFS at the mailing address specified above or from the NMFS Alaska Region Web site at http://www.fakr.noaa.gov. FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, 907-586-7228 or [email protected]. SUPPLEMENTARY INFORMATION: In January 2004, the U.S. Congress amended section 313(j) of the Magnuson-Stevens Act through the Consolidated Appropriations Act of 2004 (Public Law 108-199, section 801). As amended, section 313(j)(1) requires the Secretary of Commerce to approve and implement by regulation the Crab Rationalization Program (Program), as it was approved by the North Pacific Fishery Management Council (Council). In June 2004, the Council consolidated its actions on the Program into Amendment 18 to the FMP. Additionally, in June 2004, the Council developed Amendment 19 to the FMP, which represents minor changes necessary to implement the Program. A notice of availability for Amendments 18 and 19 was published in the Federal Register on September 1, 2004 (69 FR 53397). NMFS published a proposed rule to implement Amendments 18 and 19 on October 29, 2004 (69 FR 63200). NMFS approved Amendments 18 and 19 on November 19, 2004. NMFS published a final rule to implement Amendments 18 and 19 on March 2, 2005 (70 FR 10174) and a final rule (70 FR 13097; March 18, 2005) to correct OMB control numbers provided in the final rule dated March 2, 2005 (70 FR 10174). NMFS also published two final rules (70 FR 33390; June 8, 2005, and 70 FR 75419; December 20, 2005) to correct certain provisions in the final rule dated March 2, 2005 (70 FR 10174). NMFS intends to correct two aspects of the sideboard provisions in the regulations implementing the Program. One change would remove the sideboard limits from vessels that did not generate Bering Sea snow crab quota share under the Program. The second change would clarify that the sideboards apply to federally permitted vessels that fish in the State parallel groundfish fisheries. These changes are necessary to implement the Program's sideboard provisions. State parallel fisheries occur in State waters but are opened at the same time as Federal fisheries in Federal waters. State parallel fishery harvests are considered part of the Federal total allowable catch (TAC) and federally-permitted vessels move between State and Federal waters during the concurrent parallel and Federal fisheries. The State opens the parallel fisheries through emergency order by adopting the groundfish seasons, bycatch limits, and allowable gear types that apply in the adjacent Federal fisheries. Sideboard Provisions Sideboard limits restrict the ability of vessels whose histories resulted in Bering Sea snow crab quota share, or fishing under License Limitation Program (LLP) licenses derived from those vessels, to participate in GOA groundfish fisheries. The purpose of the sideboard limits is to prevent vessels that traditionally participated in the Bering Sea snow crab fishery from using the flexibility of the Program to increase their participation in the GOA groundfish fisheries, and primarily the GOA Pacific cod fishery. Historically, the Bering Sea snow crab fishery and GOA groundfish fisheries operated concurrently from January through March, meaning that a crab vessel owner had to decide whether to fish for Bering Sea snow crab or GOA groundfish but could not participate fully in both fisheries. With crab rationalization, vessel owners have the flexibility to fish for snow crab during a greatly extended season, or to lease their crab individual fishing quota (IFQ) and not fish at all. This increased flexibility for crab fishermen could lead to increases in fishing effort in GOA groundfish fisheries, especially the Pacific cod fishery, and could negatively affect the other participants in those fisheries. This concern about spillover effects is limited primarily to the GOA where the Pacific cod TAC is not allocated among gear types. In the BSAI, most of the Pacific cod TAC is allocated to vessels using longline and trawl gear, and LLP license restrictions prevent the entry of new pot vessels into the BSAI Pacific cod fishery. Hence, snow crab fishermen who wish to increase their groundfish fishing activity would do so primarily in the GOA Pacific cod fishery. The GOA groundfish sideboard restrictions are intended to apply to any crab vessel that: (1) Is not authorized [[Page 20967]] under the American Fisheries Act, (2) has a fishing history that generated any amount of Bering Sea snow crab quota share, (3) has an LLP license earned in whole or in part by the crab fishing history of such vessels, or (4) is fishing under an LLP license derived in whole or in part from a vessel in (1) through (4). Those snow crab vessels subject to GOA groundfish sideboard restrictions are limited, in the aggregate, from harvesting an amount of each GOA groundfish species that exceeds the percentage of each species that such vessels retained, in the aggregate, from 1996 to 2000, relative to the total retained catch of each species by all groundfish vessels during the same period. The sideboard restrictions also are apportioned by season and/or area for each GOA groundfish TAC that is apportioned by season or area. Some additional sideboard restrictions and exemptions for GOA Pacific cod do not apply to other GOA groundfish species. Any vessel subject to GOA groundfish sideboards that landed less than 50 mt (110,231 lb) of GOA groundfish between 1996 and 2000, is prohibited from engaging in directed fishing for GOA Pacific cod at all times. Additionally, any vessel that landed less than 100,000 pounds (45.4 mt) of Bering Sea snow crab and more than 500 mt (1,102,311 lb) of GOA Pacific cod between 1996 and 2000 is exempt from the GOA Pacific cod sideboard restrictions. These sideboard restrictions also apply to any vessel fishing under an LLP license earned by the crab fishing history of such vessel. NMFS notified all persons who own a vessel or hold a LLP license subject to the sideboard restrictions by issuing amended Federal fisheries permits and LLP licenses to each affected vessel owner or LLP license holder. The amended Federal fisheries permits and LLP licenses display the type of sideboard restriction on the face of the permit or license. Need for Regulatory Changes This action proposes two changes to the regulations governing sideboard protections for the GOA groundfish fisheries at 50 CFR part 680.22. The first change would remove the sideboard restrictions from vessels whose histories did not generate Bering Sea snow crab quota share. The second change would clarify that the sideboard restrictions apply to federally permitted vessels that fish in the State parallel groundfish fisheries. The Council intended the sideboards to apply to vessels that qualify for Bering Sea snow crab quota share under the Program. The proposed rule for the Program included regulatory language to this effect (69 FR 63200, October 29, 2004). However, this language was changed in the final rule to apply the sideboards to vessels that had landings during the qualifying period. This change has the unintended consequence of applying the sideboards to vessels that did not qualify for quota share. NMFS proposes to change the regulatory language to reflect the original language in the Program's proposed rule. NMFS received no public comments on this aspect of the Program's proposed rule. The existing regulations restrict participation in Federal fisheries but not in the adjacent State waters fisheries. This omission in the regulations would allow vessels whose history generated quota share to increase their participation in the groundfish fisheries. NMFS proposes to change the regulations to clarify that the GOA groundfish sideboard directed fishing closures apply to federally permitted vessels while fishing in the State parallel fisheries. The Council developed the sideboard limits to prevent vessels that traditionally participated in the Bering Sea snow crab fishery from using the flexibility of the Program to increase their participation in the GOA groundfish fisheries, primarily the GOA Pacific cod fishery. Amendment 18 does not specifically apply the sideboard limits to vessels operating in the State parallel fisheries. Amendment 18 required cooperatives to limit their members' aggregate Pacific cod catch in both Federal and State waters to the sideboard amount. In a letter dated June 2, 2004, NMFS requested that the Council remove the requirement that cooperatives manage the sideboard fishing activity of their members because NMFS determined this provision was not practical or enforceable. In the same letter, NMFS informed the Council that it would manage the groundfish sideboards through fleet-wide directed fishing closures for Federal waters and the parallel fishery in State waters. The Council removed the cooperative management requirement paragraph in Amendment 19. However, deleting this paragraph had the effect of removing from the FMP the sideboard limits for vessels fishing in State waters. NMFS finds it necessary to apply the sideboard limits to federally permitted vessels fishing in State parallel fisheries in order to implement the FMP. Without this regulatory change, vessels that traditionally participated in the Bering Sea snow crab fishery could use the flexibility of the Program to increase their participation in the GOA groundfish fisheries, and primarily the GOA Pacific cod fishery, because they could circumvent the directed fishing closures by fishing in State waters. NMFS has notified the public that it will implement the sideboard limits in the State parallel fisheries in the preamble to the proposed and final rules for the Program and in the notice of availability for Amendments 18 and 19. Classification NMFS has determined that the proposed rule is consistent with the FMP and preliminarily determined that the rule is consistent with the Magnuson-Stevens Act and other applicable laws. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared an initial regulatory flexibility analysis (IRFA) as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for it are included at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES). Number and Description of Small Entities Directly Regulated by the Proposed Action One hundred and ninety-five entities are subject to the sideboard regulations and fish in the GOA groundfish fisheries. A fishing operation is considered to be a small entity for RFA purposes if its total annual gross receipts, from all sources, is less than $4 million. The 2004 gross revenue data from the State fishticket database is readily available and includes revenue from all fishing operations in Alaska and adjacent EEZ waters. Based on these data, as many as 189 of the 195 entities may be considered small. Impacts on Directly Regulated Small Entities The Council created the sideboards with the expressed purpose of restricting the owners of vessels acquiring snow crab quota share from using the resulting increased operational flexibility to expand their participation in the already fully subscribed GOA groundfish fisheries. The proposed regulatory changes are necessary owing to the introduction of two inconsistencies that exist between the Program provisions and the language in the implementing [[Page 20968]] regulations. These corrections will implement the sideboards as intended by the Council and mandated by section 313(j) of the Magnuson- Stevens Act. Sideboards on vessels without quota share. Six small entities, as defined for RFA purposes, would be directly regulated by the removal of the sideboard provisions from vessels that did not generate snow crab quota shares. These six are currently, although inadvertently, subject to the economic burden of the sideboard restrictions, despite not having qualified for snow crab quota shares. The proposed action would lift this uncompensated burden from these six small entities by removing their sideboard restrictions. Sideboards in the State parallel groundfish fisheries. As promulgated, the current language may allow federally permitted vessels to circumvent the Program's sideboards by fishing only in the State parallel groundfish fisheries in the GOA. Since the start of the 2006 A season Pacific cod fishery (the first GOA groundfish opening following implementation of the current Program provisions), no vessels prohibited by these sideboard provisions from fishing for Pacific cod have fished in the State parallel fisheries. The fact that no vessels currently are exploiting this loophole in the regulations is testament to the clear intent that the sideboards apply to the State parallel fisheries, and the plain language understanding of the term ``GOA.'' This action proposes to correct the sideboard provisions of the Program's implementing regulations, by applying them to federally permitted vessels fishing in State parallel groundfish fisheries. Therefore, the preferred action has no economic effects beyond those considered in the EIS/RIR/IRFA/SIA prepared for the Program (see ADDRESSES). Sideboard restrictions prevent adverse spillover effects in other fisheries from an influx of effort from the rationalized crab fisheries. The Crab Rationalization Program, because it issued quota share to vessel owners and provided them the ability to form cooperatives, provides these directly regulated entities huge economic benefits, as discussed in the EIS/RIR/IRFA/SIA prepared for the Program (see ADDRESSES). As discussed in that analysis, the sideboard limits prevent these participants from using these benefits to increase their effort in the GOA groundfish fisheries. The sideboard restrictions provide the sideboarded vessels the ability to maintain their historic harvest levels in GOA groundfish fisheries therefore they do not make the sideboarded vessels worse-off economically. Vessels with minimal harvests in the snow crab fisheries and substantial harvests in the Pacific cod fishery would be exempt from the sideboard restrictions, since these vessels have little dependence on the crab fisheries. In addition, vessels with less that a minimum historic harvest from GOA groundfish fisheries are not permitted to participate in GOA groundfish fisheries. The proposed action does not likely have the potential to impose disproportionate impacts on small entities, relative to large entities. The regulatory change applying the sideboard constraints to State waters during the parallel fisheries would provide all qualifying vessels, large and small, a level playing field upon which to operate, as had been the intention of the Council from the outset. Because this change merely rescinds an unintentional and unexploited regulatory loophole, the only possible effect is to codify the commonly held understanding among the fishing industry of the sideboard rule. This proposed rule does not have the potential to significantly reduce profits for small entities. The absence of cost data precludes quantitative estimation of potential impacts on profitability, although these would be expected to be minimal, because no vessels chose to exploit this loophole in the 2006 A season (the first groundfish fishery after sideboard implementation). This regulation does not impose new recordkeeping and reporting requirements on any directly regulated small entities. This analysis did not reveal any Federal rules that duplicate, overlap or conflict with the proposed action. No significant alternatives to the proposed rule exist that accomplish the stated objectives, are consistent with applicable statutes, and would minimize the economic impact of the proposed rule on small entities. A no action alternative was considered, but was rejected because it did not meet the objectives of the Program's sideboard provisions. No significant adverse effects are shown for this action. List of Subjects in 50 CFR Part 680 Alaska, Fisheries, Reporting and recordkeeping requirements. Dated: April 17, 2006. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 680 as follows: PART 680--SHELLFISH FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 1. The authority citation for part 680 continues to read as follows: Authority: 16 U.S.C. 1862. 2. In Sec. 680.22, paragraph (a)(1)(i) is revised and paragraph (f) is added to read as follows: Sec. 680.22 Sideboard protections for GOA groundfish fisheries. * * * * * (a) * * * (1) * * * (i) Any non-AFA vessel that made a legal landing of Bering Sea snow crab (C. opilio) between January 1, 1996, and December 31, 2000, that generated any amount of Bering Sea snow crab (C. opilio) fishery QS; and * * * * * (f) Sideboard protections in the State of Alaska parallel groundfish fisheries. Vessels subject to the sideboard restrictions under paragraph (a) of this section, that are required to have a Federal Fisheries Permit and/or LLP license, shall be subject to the regulations of this section while participating in any groundfish fishery in State waters adjacent to the GOA opened by the State of Alaska and for which the State of Alaska adopts a Federal fishing season. [FR Doc. E6-6030 Filed 4-21-06; 8:45 am] BILLING CODE 3510-22-S

usgpo

2024-10-08T14:08:33.610686

FR

FR-2006-04-24/06-3835

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 20969] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3835] ======================================================================== Notices Federal Register ________________________________________________________________________ This section of the FEDERAL REGISTER contains documents other than rules or proposed rules that are applicable to the public. Notices of hearings and investigations, committee meetings, agency decisions and rulings, delegations of authority, filing of petitions and applications and agency statements of organization and functions are examples of documents appearing in this section. ======================================================================== Federal Register / Vol. 71, No. 78 / Monday, April 24, 2006 / Notices [[Page 20969]] AGENCY FOR INTERNATIONAL DEVELOPMENT Notice of Public Information Collection Requirements Submitted to OMB for Review SUMMARY: U.S. Agency for International Development (USAID) has submitted the following information collection to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104- . Comments regarding this information collection are best assured of having their full effect if received within 30 days of this notification. Comments should be addressed to: Desk Officer for USAID, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503. Copies of submission may be obtained by calling (202) 712-1365. SUPPLEMENTARY INFORMATION: OMB Number: OMB 0412-NEW. Form Number: N/A. Title: Mentor-Prot[eacute]g[eacute] Program Application. Type of Submission: New Information Collection. Purpose: The U.S. Agency for International Development (USAID) requests comment on its Mentor-Prot[eacute]g[eacute] Program Application. The form will be used to apply for participation in the USAID Mentor-Prot[eacute]g[eacute] Program. Firms interested in becoming a mentor firm must apply in writing to the USAID/OSDBU. The application shall be evaluated by the nature and extent of technical and managerial support proposed as well as the extent of financial assistance in the form of equity investment, loans, joint-venture support, and traditional subcontracting support proposed. The Mentor-Prot[eacute]g[eacute] agreement contains: (1) Name, address, phone, and E-mail of mentor and prot[eacute]g[eacute] firm(s) and a point of contact within both firms who will oversee the agreement; (2) Procedures for the mentor's voluntary withdrawal from the program including notification of the prot[eacute]g[eacute] firm and the USAID OSDBU; Withdrawal notification must be in writing, at least 30 days in advance of the mentor's intent to withdraw; (3) Procedures for a prot[eacute]g[eacute]'s voluntary withdrawal from the program. The prot[eacute]g[eacute] shall notify the mentor firm in writing at least 30 days in advance of the prot[eacute]g[eacute] firm's intent to voluntarily terminate the Mentor-Prot[eacute]g[eacute] agreement. The mentor shall notify OSDBU and the contracting officer immediately upon receipt of notice from the prot[eacute]g[eacute]; (4) A description of the type of developmental program that will be provided by the mentor firm to the prot[eacute]g[eacute] firm, to include a description of the subcontract work, a schedule for providing assistance, and criteria for evaluation of the prot[eacute]g[eacute]'s developmental success; (5) A listing of the number and types of subcontractors to be awarded to the prot[eacute]g[eacute] firm; (6) Program participation term; (7) Termination procedures; (8) Plan for accomplishing work should the agreement be terminated; and (9) Other terms and conditions, as appropriate. Review of Agreement (1) OSDBU will review the information to ensure the mentor and prot[eacute]g[eacute] are both eligible and the information that is required in this Mentor-Prot[eacute]g[eacute] Program Guide is included. OSDBU may consult with the Contracting Officer on the adequacy of the proposed mentor-prot[eacute]g[eacute] arrangement, and its review will be completed no later than 30 calendar days after receipt by OSDBU. (2) Upon completion of the review, the mentor may implement the developmental assistance program. (3) The agreement defines the relationship between the mentor and prot[eacute]g[eacute] firms only. The agreement itself does not create any privity of contract between the mentor or prot[eacute]g[eacute] and the USAID. (a) An approved agreement will be incorporated into the mentor or prot[eacute]g[eacute] firm's contract with the USAID. It should be added to the subcontracting plan of the contract. (b) If the application is disapproved, the mentor may provide additional information for reconsideration. OSDBU will complete review of any supplemental material no later than 30 days after receipt. Upon finding deficiencies the USAID considers correctable, OSDBU will notify the mentor and request information regarding correction of deficiencies to be provided within 30 days. Annual Reporting Burden: Respondents: 20. Total annual responses: 20. Total annual hours requested: 5. Dated: April 17, 2006. Joanne Paskar, Chief, Information and Records Division, Office of Administrative Services, Bureau for Management. [FR Doc. 06-3835 Filed 4-21-06; 8:45 am] BILLING CODE 6116-01-M

usgpo

2024-10-08T14:08:33.630223

FR

FR-2006-04-24/06-3836

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20969-20970] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3836] ----------------------------------------------------------------------- AGENCY FOR INTERNATIONAL DEVELOPMENT Notice of Public Information Collection Requirements Submitted to OMB for Review SUMMARY: U.S. Agency for International Development (USAID) has submitted the following information collection to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding this information collection are best assured of having their full effect if received within 30 days of this notification. Comments should be sent via e-mail to [email protected] or fax to 202-395-7285. Copies of submission may be obtained by calling (202) 712-1365. SUPPLEMENTARY INFORMATION: OMB Number: OMB 0412-0011. Form Number: AID 1010-2. Title: Application for Assistance--American Schools And Hospitals Abroad. Type of Submission: USAID finances grant assistance to U.S. founders or sponsors who apply for grant assistance from ASHA on behalf of their institutions overseas. ASHA is a competitive grants program. The office of ASHA is charged with judging which applicants may be eligible for consideration and receive what amounts of funding for what purposes. To aid in such determination, the office of ASHA [[Page 20970]] has established guidelines as the basis for deciding upon the eligibility of the applicants and the resolution on annual grant awards. These guidelines are published in the Federal Register, Doc. 79-36221. Annual Reporting Burden: Respondents: 85. Total annual responses: 85. Total annual hours requested: 900 hours. Dated: April 17, 2006. Joanne Paskar, Chief, Information and Records Division, Office of Administrative Services, Bureau for Management. [FR Doc. 06-3836 Filed 4-21-06; 8:45 am] BILLING CODE 6116-01-M

usgpo

2024-10-08T14:08:33.647904

FR

FR-2006-04-24/E6-6087

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 20970] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6087] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request April 19, 2006. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-8958. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Food and Nutrition Service Title: Request for Administrative Review. OMB Control Number: 0584-0520. Summary of Collection: The Food and Nutrition Service (FNS) of the U.S. Department of Agriculture is the Federal agency responsible for the Food Stamp Program. The Food Stamp Act of 1977, as amended, (7 U.S.C. 2011-2036), as codified under 7 CFR Parts 278 and 279, requires that the FNS determine the eligibility of retail food stores and certain food service organizations to participate in the Food Stamp Program. If a retail or wholesale firm is found to be ineligible by FNS, or is otherwise aggrieved by certain FNS actions(s), that firm has the right to file a written request for review of the administrative action with FNS. Need and Use of the Information: The request for administrative review is a formal memorandum, provided by the requester, with an original signature. FNS receives the letter requesting an administrative review and maintains it as part of the official review record. The designated reviewer will adjudicate the appeals process and make a final determination regarding the aggrieved action. Description of Respondents: Business or other for profit. Number of Respondents: 652. Frequency of Responses: Reporting: On occasion. Total Burden Hours: 133. Ruth Brown, Departmental Information Collection Clearance Officer. [FR Doc. E6-6087 Filed 4-21-06; 8:45 am] BILLING CODE 3410-30-P

usgpo

2024-10-08T14:08:33.665393

FR

FR-2006-04-24/E6-6088

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20970-20971] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6088] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request April 20, 2006. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Rural Utilities Service Title: Operating Reports for Telecommunications and Broadband Borrowers. OMB Control Number: 0572-0031. Summary of Collection: The Rural Utilities Service's (RUS) is a credit agency of the Department of Agriculture. The Rural Electrification Act of 1936, as amended (RE Act) (7 U.S.C. 901 et seq. ) authorizes the Secretary to make mortgage loans and loan guarantees to finance electric, telecommunications, broadband, and water and waste facilities in rural areas. In addition to providing loans and loan guarantees, one of RUS' main objectives is to safeguard loan security until the loan is repaid. The RE Act also authorizes the Secretary to make studies, investigations, and reports concerning the progress of borrowers' furnishing of adequate telephone service and publish and disseminate this information. Need and Use of the Information: Information from the Operating Report for both telecommunication and broadband borrowers provides RUS with vital financial information needed to ensure the maintenance of the [[Page 20971]] security for the Government's loans and service data which enables RUS to ensure the provision of quality telecommunications and broadband service as mandated by the RE Act of 1936. Form 674, ``Certificate of Authority to Submit or Grant Access to Data'' will allow telecommunication and broadband borrowers to file electronic Operating Reports with the agency using the new USDA Data Collection System. Accompanied by a Board Resolution, it will identify the name and USDA eAuthentication ID for a certifier and security administrator that will have access to the system for purposes of filing electronic Operating Reports. Description of Respondents: Business or other for-profit; Not-for- profit institutions. Number of Respondents: 1,290. Frequency of Responses: Reporting: On occasion; quarterly; annually. Total Burden Hours: 3,643. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E6-6088 Filed 4-21-06; 8:45 am] BILLING CODE 3410-15-P

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2024-10-08T14:08:33.693193

FR

FR-2006-04-24/E6-6089

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 20971] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6089] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request April 19, 2006. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Grain Inspection, Packers and Stockyard Administration Title: Survey of Customers of the Official Grain Inspection and Weighing System. OMB Control Number: 0580-0018. Summary of Collection: The United States Grain Standards Act, as amended (7 U.S.C. 71-87) (USGSA), and the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627) (AMA), authorizes the Secretary of the United States Department of Agriculture to establish official inspection, grading, and weighing programs for grains and other agricultural commodities. Under the USGSA and AMA, Grain Inspection, Packers and Stockyard Administration (GIPSA's) Federal Grain Inspection Service (FGIS) offers inspecting, weighing, grading, quality assurance, and certification services for a user-fee to facilitate the efficient marketing of grain, oilseeds, rice, lentils, dry peas, edible beans, and related agricultural commodities in the global marketplace. The goal of FGIS and the official inspection, grading, and weighing system is to provide timely, high-quality, accurate, consistent, and professional service that facilitates the orderly marketing of grain and related commodities. FGIS will collect information using a survey. Need and Use of the Information: FGIS will collect information to determine where and to what extent services are satisfactory, and where and to what extent they can be improved. The information will be shared with other managers and program leaders who will be responsible for making any necessary improvements at the office/agency, program, and project level. Description of Respondents: Business or other for-profit; State, local or tribal government. Number of Respondents: 1,840. Frequency of Responses: Reporting: Annually. Total Burden Hours: 307. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E6-6089 Filed 4-21-06; 8:45 am] BILLING CODE 3410-KD-P

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2024-10-08T14:08:33.711909

FR

FR-2006-04-24/E6-6075

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20971-20972] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6075] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Doc. No. TM-06-05] Nominations for Members of the National Organic Standards Board AGENCY: Agricultural Marketing Service, USDA. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: The Organic Foods Production Act (OFPA) of 1990, as amended, requires the establishment of a National Organic Standards Board (NOSB). The NOSB is a 15-member board that is responsible for developing and recommending to the Secretary a proposed National List of Approved and Prohibited Substances. The NOSB also advises the Secretary on other aspects of the National Organic Program. The U.S. Department of Agriculture (USDA) is requesting nominations to fill four (4) upcoming vacancies on the NOSB. The positions to be filled are: Organic handler (1 position), scientist (1 position), consumer public interest (1 position), and an environmentalist (1 position). The Secretary of Agriculture will appoint a person to each position to serve a 5-year term of office that will commence on January 24, 2007, and run until January 24, 2012. USDA encourages eligible minorities, women, and persons with disabilities to apply for membership on the NOSB. DATES: Written nominations, with cover letters and resumes, must be post-marked on or before July 14, 2006. ADDRESSES: Nominations should be sent to Ms. Katherine E. Benham, Advisory Board Specialist, USDA-AMS-TMP-NOP, 1400 Independence Avenue, SW., Room 4008-So., Ag Stop 0268, Washington, DC 20250. FOR FURTHER INFORMATION CONTACT: Ms. Katherine E. Benham, (202) 205- 7806; E-mail: [email protected]; Fax: (202) 205-7808. SUPPLEMENTARY INFORMATION: The OFPA of 1990, as amended (7 U.S.C. 6501 et seq.), requires the Secretary to establish an organic certification program for producers and handlers of agricultural products that have been produced using organic methods. In developing this program, the Secretary is required to establish an NOSB. The purpose of the [[Page 20972]] NOSB is to assist in the development of a proposed National List of Approved and Prohibited Substances and to advise the Secretary on other aspects of the National Organic Program. The NOSB made recommendations to the Secretary regarding the establishment of the initial organic program. It is anticipated that the NOSB will continue to make recommendations on various matters, including recommendations on substances it believes should be allowed or prohibited for use in organic production and handling. The NOSB is composed of 15 members; 4 organic producers, 2 organic handlers, a retailer, 3 environmentalists, 3 public/consumer representatives, a scientist, and a certifying agent. Nominations are being sought to fill the following four (4) upcoming NOSB vacancies: Organic handler (1 position), scientist (1 position), consumer public interest (1 position), and an environmentalist (1 position). Individuals desiring to be appointed to the NOSB at this time must be either an owner or operator of a certified organic handling operation; an individual with expertise in areas of environmental protection and resource conservation; an individual with expertise in the fields of toxicology, ecology, or biochemistry; or an individual who represents public interest or consumer interest groups. Selection criteria will include such factors as: Demonstrated experience and interest in organic production, organic certification, support of consumer and public interest organizations; demonstrated experience with respect to agricultural products produced and handled on certified organic farms; and such other factors as may be appropriate for specific positions. Nominees will be supplied with a biographical information form that must be completed and returned to USDA within 10 working days of its receipt. Completed biographical information forms are required for a nominee to receive consideration for appointment by the Secretary. Equal opportunity practices will be followed in all appointments to the NOSB in accordance with USDA policies. To ensure that the members of the NOSB take into account the needs of the diverse groups that are served by the Department, membership on the NOSB will include, to the extent practicable, individuals who demonstrate the ability to represent minorities, women, and persons with disabilities. The information collection requirements concerning the nomination process have been previously cleared by the Office of Management and Budget (OMB) under OMB Control No. 0505-0001. Dated: April 18, 2006. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E6-6075 Filed 4-21-06; 8:45 am] BILLING CODE 3410-02-P

usgpo

2024-10-08T14:08:33.750695

FR

FR-2006-04-24/06-3846

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 20972] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3846] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Docket No. FV-06-377] Fruit and Vegetable Industry Advisory Committee AGENCY: Agricultural Marketing Service, USDA. ACTION: Notice of public meeting. ----------------------------------------------------------------------- SUMMARY: The purpose of this notice is to notify all interested parties that the Agricultural Marketing Service (AMS) will hold a Fruit and Vegetable Industry Advisory Committee (Committee) meeting that is open to the public. The U.S. Department of Agriculture (USDA) established the Committee to examine the full spectrum of issues faced by the fruit and vegetable industry and to provide suggestions and ideas to the Secretary of Agriculture on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. This notice sets forth the schedule and location for the meeting. DATES: Tuesday, June 27, 2006, from 8 a.m. to 5 p.m., and Wednesday, June 28, 2006, from 8 a.m. to 2 p.m. ADDRESSES: The Committee meeting will be held at the Holiday Inn Capitol, 550 C Street, SW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Andrew Hatch, Designated Federal Official, USDA, AMS, Fruit and Vegetable Programs. Telephone: (202) 690-0182. Facsimile: (202) 720-0016. e-mail: [email protected]. SUPPLEMENTARY INFORMATION: Pursuant to the Federal Advisory Committee Act (FACA) (5 U.S.C. App. II), the Secretary of Agriculture established the Committee in August 2001 to examine the full spectrum of issues faced by the fruit and vegetable industry and to provide suggestions and ideas to the Secretary on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. The Committee was rechartered in July 2003 and again in June 2005 with new members appointed by USDA from industry nominations. AMS Deputy Administrator for Fruit and Vegetable Programs, Robert C. Keeney, serves as the Committee's Executive Secretary. Representatives from USDA mission areas and other government agencies affecting the fruit and vegetable industry will be called upon to participate in the Committee's meetings to the public so that they may attend and present their recommendations. Reference the date and address section of this announcement for the time and place of the meeting. Topics of discussion at the advisory committee meeting will include: the Speciality Crop Block Grant Program; sustainable agriculture; U.S. produce industry labor and immigration issues; the Women, Infants and Children (WIC) program; the 2007 Farm Bill; state and federal minimum quality requirements and grade standards; and overviews of the Perishable Agricultural Commodities Act (PACA) program and government support of Produce for Better Health Foundation initiatives. Those parties that would like to speak at the meeting should register on or before June 16, 2006. To register as a speaker, please e-mail your name, affiliation, business address, e-mail address, and phone number to Mr. Andrew Hatch at: [email protected] or facsimile to (202) 720-0016. Speakers who have registered in advance will be given priority. Groups and individuals may submit comments for the Committee's consideration to the same e-mail address. The meeting will be recorded, and information about obtaining a transcript will be provided at the meeting. The Secretary of Agriculture selected a diverse group of members representing a broad spectrum of persons interested in providing suggestions and ideas on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. Equal opportunity practices were considered in all appointments to the Committee in accordance with USDA policies. If you require special accommodations, such as a sign language interpreter, please contact the person listed under FOR FURTHER INFORMATION CONTACT. Dated: April 18, 2006. Lloyd Day, Administrator, Agricultural Marketing Service. [FR Doc. 06-3846 Filed 4-21-06; 8:45 am] BILLING CODE 3410-02-M

usgpo

2024-10-08T14:08:33.764749

FR

FR-2006-04-24/E6-6029

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 20973] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6029] [[Page 20973]] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Agricultural Research Service National Agricultural Library; Notice of Intent To Seek Approval To Collect Information AGENCY: Agricultural Research Service, National Agricultural Library, USDA. ACTION: Notice and request for comments. ----------------------------------------------------------------------- SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and Office of Management and Budget (OMB) regulations at 5 CFR part 1320 (60 FR 44978, August 29, 1995), this notice announces the National Agricultural Library's (NAL) intent to request renewal for an information collection from the Technical Services Division to obtain suggestions for additions/changes to the NAL Agricultural Thesaurus. DATES: Comments on this notice must be received by June 28, 2006 to be assured of consideration. ADDRESSES: Address all comments concerning this notice to Lori Finch, Thesaurus Coordinator, 10301 Baltimore Ave., Room 011; Beltsville, MD 20705; Phone: 301-504-6853; Fax: 301-504-5213. Submit electronic comments to [email protected]. SUPPLEMENTARY INFORMATION: Title: Suggestions for Changes to NAL Agricultural Thesaurus Form. OMB Number: 0518-0035. Expiration Date: 10/31/2006. Type of Request: Approval for renewal of data collection. Abstract: The collection of suggestions for changes to the NAL Agricultural Thesaurus will provide Web site users with the opportunity to suggest the addition of new terminology of interest to them. The Thesaurus Staff will review the suggestion via a Proposal Review Board and provide feedback to the user. This form will provide the NAL Thesaurus Staff with valuable suggestions to improve the content and organization of the NAL Agricultural Thesaurus. It is hoped that an online form that is readily available to users who search the thesaurus would encourage users to submit their ideas and needs for terminology. The Suggestions for Changes to NAL Agricultural Thesaurus Form is a document comprised of 8 inquiry components where users submit suggestions for changes to the thesaurus. Information to be submitted includes, user contact information (name, affiliation, e-mail, phone), their proposed change to the thesaurus, the field of study or subject area of the term being proposed, justification for the change, and any reference material which the user would like to provide as background information. Name, e-mail and phone components are mandatory. Estimate of Burden: Public reporting burden for this collection of information is estimated to average 10 minutes per response. Respondents: The agricultural community, USDA personnel and their cooperators, including, public and private users, or providers of agricultural information. Estimated Number of Respondents: 100 per year. Estimated Total Annual Burden on Respondents: 1000 minutes. Comments Comments are invited on (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and the assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who respond, including the use of appropriate automated, electronic, mechanical, or other technology. Comments should be sent to the address in the preamble. All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. Dated: April 6, 2006. Antoinette Betschart, Associate Administrator, ARS. [FR Doc. E6-6029 Filed 4-21-06; 8:45 am] BILLING CODE 3410-03-P

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2024-10-08T14:08:33.790888

FR

FR-2006-04-24/E6-6086

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20973-20978] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6086] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation Request for Applications (RFA): Research and Development Risk Management Research Partnerships Announcement Type: Notice of availability of funds and request for application for risk management research partnerships. Catalog of Federal Domestic Assistance Number (CFDA): 10.456. Dates: The closing date and time for receipt of an application is 5 p.m. CDT, June 8, 2006. Applications received after the deadline will not be evaluated by the technical review panel and will not be considered for funding. All awards will be made and agreements completed no later than September 30, 2006. Overview: The purpose of the Risk Management Research Partnerships is to fund the development of non-insurance risk management tools that will be utilized by agricultural producers to assist them in mitigating the risks inherent in agricultural production. The proposal must address the objectives listed in part I.D. In conducting activities to achieve the purpose of this proposed research, the recipient will be responsible for the activities listed under section II.A.1 of this part. RMA will be responsible for the activities listed under section II.A.2 of this part. In addition, all proposals must clearly demonstrate the usefulness and benefits of the tool to producers of priority commodities and provide a plan for on-going maintenance and support as described in part III.C.2. Approximately $4 million is available to fund an undetermined number of partnerships. Projects may be funded for a period of up to three years. Applications are accepted from public and private entities; individuals are not eligible to apply. No cost sharing by the applicant is required. There are no limitations on the number of applications each applicant may submit. I. Funding Opportunity Description A. Background The Risk Management Agency (RMA), on behalf of the Federal Crop Insurance Corporation (FCIC), is committed to meeting the risk management needs and improving or developing risk management tools for the nation's farmers and ranchers. It does this by offering Federal crop insurance and other risk management products and tools through a network of private-sector entities and by overseeing the creation of new products, seeking enhancements in existing products, and by expanding the use of a variety of risk management tools. Risk management tools include a variety of risk management options and strategies developed to assist producers in mitigating the risks inherent in agricultural production. For the purposes of this announcement, risk management tools do not include insurance products, plans of insurance, policies, modifications thereof or any related material. B. Purpose The purpose of this program is to fund partnership agreements that assist producers, minimize their production [[Page 20974]] risks, and/or develop risk management tools. The agreements are for the development of risk management tools for use directly by agricultural producers. To aid in meeting these goals each partnership agreement awarded through this program will provide the recipient with funds, guidance, and the substantial involvement of RMA to carry out these risk management initiatives. Applications requesting funding for the development of insurance products, plans of insurance, policies, modifications thereof or related materials are excluded from consideration under this announcement. C. Authorization In accordance with section 522(d) of the Federal Crop Insurance Act (Act), FCIC announces the availability of funding for risk management research activities. Priority will be given to those activities addressing the need for risk management tools for producers of the following agricultural commodities (For purposes of this announcement, these commodities are collectively referred to as ``Priority Commodities''): Agricultural commodities covered by section 196 of the Agricultural Market Transition Act (7 U.S.C. 7333) (Noninsured Assistance Program (NAP)). Commodities in this group are commercial crops that are not covered by catastrophic risk protection crop insurance, are used for food or fiber (except livestock), and specifically include, but are not limited to, floricultural, ornamental nursery, Christmas trees, turf grass sod, aquaculture (including ornamental fish), and industrial crops. Specialty crops. Commodities in this group may be covered under a Federal crop insurance plan and include, but are not limited to, fruits, vegetables, tree nuts, syrups, honey, roots, herbs, and highly specialized varieties of traditional crops. Underserved commodities. This group includes: (a) Commodities, including livestock that are covered by a Federal crop insurance plan but for which participation in an area is below the national average; and (b) commodities, including livestock, with inadequate crop insurance coverage. D. Objectives The project objectives listed below highlight the research priorities of RMA. The objectives are listed in priority order, with the most important objective designated as 1, the second most important designated as 2, etc. The order of priority will be considered in making awards. The suggested emphasis discussed within each objective is not meant to be exhaustive. Applicants may propose other topics within any project objective but justification for those topics must be provided. RMA encourages proposals that address multiple risks and will result in the development of tools that provide an integrated or holistic approach to risk mitigation. Preference will be given to such proposals. Proposals may address multiple objectives, but each proposal must specify a single primary objective for funding purposes. In order of priority, the project objectives are: 1. To develop risk management tools that would provide producers facing reduced water allocations with the information needed for one or more of the following: Determining the amount of acres that could be planted and irrigated; determining expected yield reductions associated with reduced irrigation water application; determining expected water deliveries for making planting decisions. 2. To develop risk management tools to assist producers (including livestock) in finding alternative products, techniques or strategies related to disease management. 3. To develop risk management tools to assist producers in finding alternative products, techniques or strategies related to pest mitigation under various farming practices. 4. To develop risk management tools encouraging self-protection for production agricultural enterprises vulnerable to losses due to terrorism. II. Award Information A. Award Description Approximately $4 million is available for partnership agreements that will fund the development of risk management tools. Awards under this program will be made on a competitive basis. Projects may be funded for a period of up to three years for the activities described in this announcement. Projects can also be in two parts with the first part including the research and feasibility studies and the second part including the development, implementation, delivery and maintenance of the risk management tool. If the development of the tool is determined not to be feasible, the partnership may be terminated by RMA after completion of the first part with funding reduced accordingly. There is no commitment by RMA to fund any particular project or to make a specific number of awards. Applicants awarded a partnership agreement for an amount that is less than the amount requested will be required to modify their application to conform to the reduced amount before execution of the partnership agreement. No maximum or minimum funding levels have been established for individual projects. All awards will be made and agreements completed no later than September 30, 2006. Recipients of awards must demonstrate non-financial benefits from a partnership agreement and must agree to substantial involvement of RMA in the project. 1. Recipient Activities The applicant will be required to perform the following activities: a. Finalize, in cooperation with RMA, the partnership agreement. b. Finalize, in cooperation with RMA, the plan to administer, maintain and update the risk management tool in the future. The applicant must develop a plan for the delivery of the risk management tool to producers and the ongoing maintenance and support of the risk management tool, including how the applicant will fund the delivery, support, maintenance and updating of the tool to maintain its applicability, benefits, usefulness, and value to producers. The applicant must also deliver the risk management tool to producers and support, maintain and update the tool as applicable. c. Define non-financial benefits and the substantial involvement of the RMA. d. Coordinate, manage, document and implement the timely completion of the approved research and development activities. e. Abide by the plans and provisions contained in the partnership agreement. f. Report on program performance in accordance with the partnership agreement. g. The recipient may be required to make a presentation to the FCIC Board of Directors. h. Adhere to RMA guidelines for systems development and information technology development. 2. RMA Activities RMA will be substantially involved during the performance of the funded activity. Potential types of substantial involvement may include, but are not limited to the following activities: a. Collaborate on the research plan; b. Assist in the selection of subcontractors and project staff; c. Review and approve critical stages of project development before subsequent stages may be started; d. Provide assistance in the management or technical performance of the project; [[Page 20975]] e. Collaborate with the recipient in the development of materials associated with the funded project, as it relates to publication or presentation of the results and the distribution of the risk management tools to the public, any producer groups, RMA, and the FCIC Board of Directors; f. Assist in the collection of data and information that may be available in RMA databases; g. Collaborate with the recipient in the development of a proposal to administer, maintain and update the risk management tool in the future. h. Similar types of activities. B. Other Activities In addition to the specific activities listed above, the applicant may suggest other activities that would contribute directly to the purpose of this program. For any additional activity suggested, the applicant should identify the objective of the activity, the specific tasks required to meet the objective, specific timelines for performing the tasks, and specific responsibilities of the partners. The applicant should also identify specific ways in which RMA could or should have substantial involvement in that activity. III. Eligibility Information A. Eligible Applicants Proposals are invited from qualified public and private entities. Eligible applicants include colleges and universities, Federal, State, and local agencies, Native American tribal organizations, non-profit and for-profit private organizations or corporations, and other entities. Individuals are not eligible applicants. Although an applicant may be eligible to compete for an award based on its status as an eligible entity, other factors may exclude an applicant from receiving Federal assistance under this program (e.g. debarment and suspension; a determination of non-performance on a prior contract, cooperative agreement, grant or partnership; a determination of a violation of applicable ethical standards). B. Cost Sharing or Matching Cost sharing, matching, in-kind contributions, or cost participation is not required. C. Other 1. Applicants must demonstrate the usefulness of the proposed risk management tool and the benefits of the tool to producers of priority commodities. Applicants must include information supporting the need for the tool, such as a market analysis, or communications from producers or producer organizations expressing a need for the proposed tool. The proposal must also clearly define how the proposed tool will meet the needs of the producer groups identified. Refer to part V.A.3 for the review and selection process. 2. If the project proposed for development requires ongoing maintenance, support and delivery to producers beyond the development stage, the applicant must submit a plan to continue the maintenance, support and delivery of the tool without relying on RMA's resources. If the applicant does not plan to directly support, maintain and deliver the tool using non-award funds after the development period funded by this award is completed, then the proposal should identify a third party sponsor who will do so. For example, if a proposed tool would require constant updating of data and availability on a website in order to be utilized by producers, then a sponsor should be identified that would be able to provide the funds necessary to maintain and host the tool. Third party sponsors may include government agencies, grower organizations, industry organizations, private sector entities, etc. If the tool proposed does not require support, maintenance, updating or revisions to maintain applicability or value or does not require continued delivery to producers, the proposal should so state and provide the basis why such actions are not required. Refer to part V.A.4 for the review and selection process. 3. Applicants must be able to demonstrate they will receive non- financial benefits as a result of the partnership agreement. Non- financial benefits must accrue to the applicant and must include more than the ability to provide income to the applicant or for the applicant's employees or the community. The applicant must demonstrate that performance under the partnership agreement will further the specific mission of the applicant (such as providing research or activities necessary for graduate or other students to complete educational programs or benefits derived through the furtherance of an organization's mission). Refer to part V.A.2 for evaluation criteria. IV. Application and Submission Information A. Address To Request Application Package Applicants may download an application package from the Risk Management Agency Web site at: http://www.rma.usda.gov. Applicants may also request an application package from: RMA/RED Partnership Agreement Program, USDA, RMA/RED, 6501 Beacon Drive, Stop 0813, Kansas City, Missouri 64133-4676, phone: (816) 926-6343, fax: (816) 926-7343, e- mail: [email protected]. Completed and signed application packages must be sent to: RMA/RED Partnership Agreement Program, USDA, RMA/RED, 6501 Beacon Drive, Stop 0813, Kansas City, Missouri 64133-4676. Applicants are encouraged to submit completed and signed application packages using overnight mail or delivery service, or electronic submission to ensure timely receipt by the USDA. Applicants using the U.S. Postal Service should allow for extra security-processing time for mail delivered to government offices. B. Content and Form of Application Submission If submitting a hardcopy application, a complete and valid application package must include an original, twelve complete paper copies are requested, three copies are required, and one copy (Microsoft Word format preferred) of the application package on diskette or compact disc, and: 1. A completed and signed OMB Standard Form 424, ``Application for Federal Assistance''. 2. A completed and signed OMB Standard Form 424-A, ``Budget Information--Non-construction Programs''. Reviewers will need sufficient information to effectively evaluate the budget. Indirect cost for projects submitted in response to this solicitation are limited to 10 percent of the total direct cost of the agreement. A sample budget narrative, including suggestions for format and content, is available on the RMA Web site (http://www.rma.usda.gov) or upon request. 3. A completed and signed OMB Standard Form 424-B, ``Assurances, Non-construction Programs''. 4. A statement of the non-financial benefits of any partnership agreement to the recipient. (Refer to Part II.B ``Non-financial Benefits''). 5. A completed Form R&D-1, ``Title Page and Proposal Summary.'' Each proposal must specify the single primary objective for evaluation and funding purposes. The same or similar proposals cannot be submitted multiple times with different primary objectives specified. If the same or similar proposals are submitted, the first received will be the only one evaluated 6. A proposal narrative submitted with the application package should be [[Page 20976]] limited to 10 single-sided pages. Reviewers will need sufficient information to effectively evaluate the application under the criteria contained in part V. A sample narrative, including suggestions for format and content, is available on the RMA Web site (http://www.rma.usda.gov) or upon request. 7. An appendix containing any attachments that may support information in the narrative (Optional). 8. A completed Form R&D-2, ``Statement of Work.'' If submitting the above materials electronically, as described in the RMA website, copies of the submission will not be required. Applicants are responsible for ensuring the application materials are received by the closing date. Incomplete application packages will not receive further consideration. C. Submission Dates and Times The closing date and time for receipt of an application is 5 p.m. CDT, June 8, 2006. Applications received after the deadline will not be evaluated by the technical review panel and will not be considered for funding. D. Funding Restrictions No maximum or minimum funding levels have been established for individual projects or for categories of objectives. The funding level by category of objective will be determined by FCIC. Indirect cost for projects submitted in response to this solicitation are limited to 10 percent of total direct cost of the agreement. Each project may be funded for a period of up to three years for the activities described in this announcement. Partnership agreement funds may not be used to: 1. Plan, repair, rehabilitate, acquire, or construct a building or facility including a processing facility; 2. To purchase, rent, or install fixed equipment; 3. Repair or maintain privately owned vehicles; 4. Pay for the preparation of the partnership application; 5. Fund political activities; 6. Pay costs incurred prior to receiving this partnership agreement; 7. Fund any activities prohibited in 7 CFR parts 3015 and 3019, as applicable. E. Other Submission Requirements Mailed Submissions 1. If submitting the application via regular mail, an original and twelve (12) paper copies are requested, three copies are required, of the complete and signed application, and one copy (Microsoft Word format preferred) on diskette or compact disk must be submitted in one package at the time of initial submission. 2. If submitting the application via regular mail all applications must be submitted and received by the deadline. Applications that do not meet all of the requirements in this announcement are considered incomplete applications. Late or incomplete applications will not be considered in this competition and will be returned to the applicant. 3. Applications will be considered as meeting the announced deadline if they are received in the mailroom at the address stated above in section IV.A., on or before the deadline. Applicants are cautioned that express, overnight mail or other delivery services do not always deliver as agreed. Applicants are responsible for mailing applications well in advance, to ensure that applications are received on or before the deadline time and date. Applicants should be aware that there may be significant delays in delivery if applications are mailed using the U.S. Postal Service due to the additional security measures that mail delivered to government offices now requires. Applicants should take this into account because failure of such delivery services will not extend the deadline. 4. Address when using U.S. Postal Service: USDA, RMA/RED, 6501 Beacon Drive, Stop 0813, Kansas City, Missouri 64133-4676. Electronic Submissions Applications transmitted electronically via Grants.gov will be accepted prior to the application date or time deadline. The application package can be accessed via Grants.gov: go to http://www.grants.gov, click on ``Find Grant Opportunities,'' then click on ``Search Grant Opportunities,'' and enter the CFDA number (located at the beginning of this RFA) to search by CFDA number. From the search results, select the item that correlates to the title of this RFA. If you do not have electronic access to the RFA or have trouble downloading material and you would like a hardcopy, or have any questions you may contact Kristin Chow, USDA, RMA/RED, 6501 Beacon Drive, Stop 0813, Kansas City, Missouri 64133-4676, phone (816) 926- 6399, fax (816) 926-7343, e-mail: [email protected]. F. Acknowledgement of Application Receipt of applications will be acknowledged by e-mail, whenever possible. Therefore, each applicant is encouraged to provide an e-mail address in the application. If an e-mail address is not indicated on an application, receipt will be acknowledged by letter. There will be no notification of incomplete, unqualified or unfunded applications until the awards have been made. When received by RMA, applications will be assigned an identification number. This number will be communicated to applicants in the acknowledgement of receipt of applications. An application identification number should be referenced in all correspondence regarding the application. If the applicant does not receive an acknowledgement within 15 days of the submission deadline, the applicant should contact the Research and Development Division at (816) 926-6343. V. Application Review Information A. Criteria 1. Research Objectives--Maximum 30 Points The application must receive a minimum score of 20 points under this criterion in order to be considered for further evaluation and funding. Applications receiving less than 20 points will be eliminated and will not be evaluated under criterion 2 through 4. The proposal must clearly define the development, management and implementation of a risk management tool designed to meet the needs of producers under the objectives listed in part I.D. A proposal that best meets the objectives and addresses multiple risks that result in the development of tools that provide an integrated or holistic approach to risk mitigation will be given the highest score. The proposal will be reviewed to determine if it is similar to a project that has been funded, has been recommended for funding, or is currently under development through other means. 2. Indication of RMA Involvement and Non-Financial Benefits--Maximum 10 Points The proposal clearly indicates areas of substantial involvement by RMA and clearly indicates benefits derived from the partnership that extend beyond the financial benefits or funding of the research proposal. Those proposals that clearly outline the involvement of RMA in all aspects of the project and demonstrate non-financial benefits will receive the highest score. [[Page 20977]] 3. Research Approach, Methodology, Development and Implementation-- Maximum 45 Points The proposal clearly demonstrates a sound research approach and defines the methodology to be used as well as describes the development and implementation of the risk management tool. The proposal must clearly demonstrate the usefulness of the tool and the benefits of the tool to producers of priority commodities and demonstrate that there is a reasonable expectation that the tool will actually be used by a substantial number of such producers. The plan will be evaluated to ensure that the risk management tool can be delivered to producers and will be supported, maintained, updated or revised as necessary. Proposals that demonstrate a clear, concise and generally accepted research methodology and innovative approach will receive the highest number of points. 4. Management and Plan for Maintenance and Support--Maximum 15 Points The proposal clearly demonstrates the applicant's ability and resources to coordinate and manage all aspects of the proposed research project. Applicants must provide a detailed budget summary that clearly explains and justifies costs associated with the project. The applicant must submit a plan, if necessary, to continue the maintenance, support and delivery of the tool without relying on RMA's resources. The applicant whose approach is the most cost effective and optimizes the use and effective application of the funding will receive the highest score. B. Review and Selection Process Each application will be evaluated using a four-part process. First, each application will be screened by RMA to ensure that each proposal specifies a single primary objective for evaluation and funding purposes and the proposal meets an objective stated in part I.D. The same or similar proposals cannot be submitted multiple times with different primary objectives specified. If the same or similar proposals are submitted, the first received will be the only one evaluated. Applications that do not meet an objective stated in part I.D. and all other requirements in this announcement or are incomplete, will not receive further consideration. Second, all eligible applications will be evaluated using the criterion in part V.A.1. Applications must score at least 20 points under this criterion in order to be to be evaluated further. Third, all applications scoring the required 20 points will be evaluated further under parts V.A.2 through 4. For the second and third steps, a review panel will consider all applications that are complete and meet the objectives in part I.D. and all other requirements in this announcement. The panel will review the merits of the applications. The evaluation of each application will be conducted by a panel of not less than three independent reviewers. The panel will be comprised of representatives from USDA, other Federal agencies, and others representing public and private organizations, as needed. The narrative and any appendixes provided by each applicant will be used by the review panel to evaluate the merits of the project that is being proposed for funding. The panel will examine and score applications based on the evaluation criteria and weights contained in part V.A. The identities of review panel members will remain confidential throughout the entire review process and will not be released to applicants. In order to be considered for funding, a proposal must score at least 75 points. For the last step, those applications meeting the minimum number of points will be listed in initial rank order by objective. The highest- ranking proposal for each objective will be funded in the order of priority (the highest ranking proposal meeting objective 2 will be funded second, etc.). It is possible that funds could be exhausted before funding projects for every objective. If there are funds remaining, the process will be repeated until the funds are obligated. The projects proposed for funding will be presented, along with funding level recommendations, to the Manager of FCIC, who will make the final decision on awarding of a partnership agreement. If the Manager of FCIC determines that any application is sufficiently similar to a project that has been funded or has been recommended to be funded under this announcement or any other research and development program, then the Manager may elect to not fund that application in whole or in part. VI. Award Administration Information A. Administrative and National Policy Requirements 1. Access to Panel Review Information Upon written request, scores from the evaluation panel, not including the identity of reviewers, will be sent to the applicant after the review and awards process has been completed. 2. Notification of Partnership Agreement Awards and Notification of Non-Selection Following approval of the applications selected for funding, notice of project approval and authority to draw down funds will be made to the selected applicants in writing. Within the limit of funds available for such purpose, the awarding official of RMA shall enter into partnership agreements with those applicants whose applications are judged to be most meritorious under the procedures set forth in this announcement. The partnership agreement provides the amount of Federal funds for use in the project period, the terms and conditions of the award, and the time period for the project. The effective date of the partnership agreement shall be the date the agreement is executed by both parties. All funds provided to the applicant by FCIC must be expended solely for the purpose for which funds are obligated in accordance with the approved application and budget, the regulations, the terms and conditions of the award, and the applicability of Federal cost principles. No commitment of Federal assistance beyond the project period is made or implied, as a result of any award made pursuant to this announcement. Notification of denial of funding will be sent to applicants after final funding decisions have been made. Reasons for denial of funding can include incomplete proposals, proposals that did not meet the objectives, scored low or were duplicative. 3. Confidential Aspects of Proposals and Awards When an application results in a partnership agreement, it becomes a part of the official record of RMA transactions, available to the public upon specific request. Information that the Secretary of Agriculture determines to be of a confidential, privileged, or proprietary nature will be held in confidence to the extent permitted by law. Therefore, any information that the applicant wishes to be considered confidential, privileged, or proprietary should be clearly marked within the application, including the basis for such designation. The original copy of a proposal that does not result in an award will be retained by RMA for a period of one year. Other copies will be destroyed. Such a proposal will be released only with the express written consent of the applicant or to the extent [[Page 20978]] required by law. A proposal may be withdrawn at any time prior to award. The names of applicants, the names of individuals identified in the applications, the content of applications, and the panel evaluations of applications will all be kept confidential, except to those involved in the review process, to the extent permitted by law. 4. Administration All partnership agreements are subject to 7 CFR part 3015. 5. Prohibitions and Requirements With Regard to Lobbying Section 1352 of Public Law 101-121, enacted on October 23, 1989, imposes prohibitions and requirements for disclosure and certification related to lobbying on recipients of Federal contracts, grants, cooperative agreements, and loans. It provides exemptions for Indian Tribes and tribal organizations. Current and prospective recipients, and any subcontractors, are prohibited from using Federal funds, other than profits from a Federal contract, for lobbying Congress or any Federal agency in connection with the award of a contract, grant, cooperative agreement, or loan. In addition, for each award action in excess of $100,000 ($150,000 for loans) the law requires recipients and any subcontractors: (1) To certify that they have neither used nor will use any appropriated funds for payment of lobbyists; (2) to disclose the name, address, payment details, and purpose of any agreements with lobbyists whom recipients of their subcontractors will pay with profits or other non-appropriated funds on or after December 22, 1989; and (3) to file quarterly up-dates about the use of lobbyists if material changes occur in their use. The law establishes civil penalties for non-compliance. All recipients must provide a copy of the certification and disclosure forms prior to the beginning of the project period. 6. Applicable OMB Circulars All partnership agreements funded as a result of this notice will be subject to the requirements contained in all applicable OMB circulars. 7. Audit Requirements Applicants awarded partnership agreements are subject to audit. 8. Requirement To Assure Compliance With Federal Civil Rights Laws Project leaders of all partnership agreements funded as a result of this notice are required to know and abide by Federal civil rights laws and to assure USDA and RMA that the recipient is in compliance with and will continue to comply with Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), 7 CFR part 15, and USDA regulations promulgated under, 7 CFR 1901.202. RMA requires that recipients submit Form RD 400-4, Assurance Agreement (Civil Rights), assuring RMA of this compliance prior to the beginning of the project period. B. Reporting Applicants awarded a partnership agreement will be required to submit quarterly written progress and financial reports (SF-269) throughout the project period, as well as a final program and financial report not later than 90 days after the end of the project period. Recipients will be required to submit prior to the award: A completed and signed Form RD 400-4, Assurance Agreement (Civil Rights). A completed and signed OMB Standard Form LLL, ``Disclosure of Lobbying Activities.'' A completed and signed AD-1047, ``Certification Regarding Debarment, Suspension and Other Responsibility Matters--Primary Covered Transactions.'' A completed and signed AD-1049, ``Certification Regarding Drug-Free Workplace.'' A completed and signed Faith-Based Survey on EEO. VII. Agency Contact If applicants have any questions they may contact: USDA, RMA/RED, 6501 Beacon Drive, Stop 0813, Kansas City, Missouri 64133-4676, phone (816) 926-6343, fax (816) 926-7343, e-mail: [email protected]. VIII. Other Information A. Dun and Bradstreet Data Universal Numbering System (DUNS) A DUNS number is a unique nine-digit sequence recognized as the universal standard for identifying and keeping track of over 70 million businesses worldwide. The Office of Management and Budget published a notice of final policy issuance in the Federal Register June 27, 2003 (68 FR 38402) that requires a DUNS number in every application (i.e., hard copy and electronic) for a grant or cooperative agreement on or after October 1, 2003. Therefore, potential applicants should verify that they have a DUNS number or take the steps needed to obtain one. For information about how to obtain a DUNS number, go to http://www.grants.gov. Please note that the registration may take up to 14 business days to complete. B. Required Registration With the Central Contract Registry for Submission of Proposals The Central Contract Registry (CCR) is a database that serves as the primary Government repository for contractor information required for the conduct of business with the Government. This database will also be used as a central location for maintaining organizational information for organizations seeking and receiving grants from the Government. Such organizations must register in the CCR prior to the submission of applications. A DUNS number is needed for CCR registration. For information about how to register in the CCR, visit ``Get Started'' at http://www.grants.gov. Allow a minimum of 5 business days to complete the CCR registration. Signed in Washington, DC, on April 17, 2006. Eldon Gould, Manager, Federal Crop Insurance Corporation. [FR Doc. E6-6086 Filed 4-21-06; 8:45 am] BILLING CODE 3410-08-P

usgpo

2024-10-08T14:08:33.824617

FR

FR-2006-04-24/E6-6081

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20978-20979] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6081] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Forest Service National Tree-Marking Paint Committee Meeting AGENCY: Forest Service, USDA. ACTION: Notice of meeting. ----------------------------------------------------------------------- SUMMARY: The National Tree-marking Paint Committee will meet in Eureka, California on May 16-18, 2006. The purpose of the meeting is to discuss activities related to improvements in, concerns about, and the handling and use of tree-marking paint by personnel of the Forest Service and the Department of the Interior's Bureau of Land Management. DATES: The meeting will be held May 16-18, 2006, from 8 a.m. to 5 p.m. ADDRESSES: The meeting will be held at the Red Lion Inn, 1929 Fourth Street, Eureka, California, 95501. Persons who wish to file written comments before or after the meeting must send written comments to Bob Simonson, Acting Chairman, National Tree-marking Paint Committee, Forest Service, USDA, San Dimas Technology and Development Center, 444 East Bonita Avenue, San Dimas, California 91773, or electronically to [email protected]. [[Page 20979]] FOR FURTHER INFORMATION CONTACT: Bob Simonson, Program Leader, San Dimas Technology and Development Center, Forest Service, USDA, (909) 599-1267, extension 242 or [email protected]. SUPPLEMENTARY INFORMATION: The National Tree-Marking Paint Committee comprises representatives from the Forest Service national headquarters, each of the nine Forest Service Regions, the Forest Products Laboratory, the Forest Service San Dimas Technology and Development Center, and the Bureau of Land Management. The General Services Administration and the National Institute for Occupational Safety and Health are ad hoc members and provide technical advice to the committee. A field trip will be held on May 16 and is designed to supplement information related to tree-marking paint. This trip is open to any member of the public participating in the public meeting on May 17-18. However, transportation is provided only for committee members. The main session of the meeting, which is open to public attendance, will be held on May 17-18. Closed Sessions While certain segments of this meeting are open to the public, there will be two closed sessions during the meeting. The first closed session is planned for approximately 9 to 11 a.m. on May 17. This session is reserved for individual paint manufacturers to present products and information about tree-marking paint for consideration in future testing and use by the agency. Paint manufacturers also may provide comments on tree-marking paint specifications or other requirements. This portion of the meeting is open only to paint manufacturers, the Committee, and committee staff to ensure that trade secrets will not be disclosed to other paint manufacturers or to the public. Paint manufacturers wishing to make presentations to the Tree- Marking Paint Committee during the closed session should contact the Acting Chairman at the telephone number listed at FOR FURTHER INFORMATION CONTACT in this notice. The second closed session is planned for approximately 2 to 4 p.m. on May 18, 2005. This session is reserved for Federal Government employees only. Any person with special access needs should contact the Acting Chairman to make those accommodations. Space for individuals who are not members of the National Tree-Marking Paint Committee is limited and will be available to the public on a first-come, first-served basis. Dated: April 7, 2006. Frederick R. Norbury, Associate Deputy Chief, National Forest System. [FR Doc. E6-6081 Filed 4-21-06; 8:45 am] BILLING CODE 3410-11-P

usgpo

2024-10-08T14:08:33.836855

FR

FR-2006-04-24/06-3839

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 20979] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3839] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Forest Service Notice of Resource Advisory Committee Meeting AGENCY: Lassen Resource Advisory Committee, Susanville, California, USDA Forest Service. ACTION: Notice of meeting. ----------------------------------------------------------------------- SUMMARY: Pursuant to the authorities in the Federal Advisory Committees Act (Pub. L. 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 106-393) the Lassen National Forest's Lassen County Resource Advisory Committee will meet Thursday, May 11th in Susanville, California for a business meeting. The meetings are open to the public. SUPPLEMENTARY INFORMATION: The business meeting on May 11th will begin at 9 a.m., at the Lassen National Forest Headquarters Office, Caribou Conference Room, 2550 Riverside Drive, Susanville, CA 96130. This meeting will be reviewing February meeting minutes; have an update on the proposed legislation and coalition meeting; summer trips designations; and review the schedule for the final round of funding through the ``Secure Rural Schools and Self Determination Act of 2000,'' commonly known as Payments to States. Time will also be set aside for public comments at the beginning of the meeting. FOR FURTHER INFORMATION CONTACT: Robert Andrews, District Ranger, Designated Federal Officer, at (530) 257-4188; or Public Affairs Officer, Heidi Perry, at (530) 252-6604. Laurie Tippin, Forest Supervisor. [FR Doc. 06-3839 Filed 4-21-06; 8:45 am] BILLING CODE 3410-11-M

usgpo

2024-10-08T14:08:33.867948

FR

FR-2006-04-24/06-3840

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 20979] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3840] ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Forest Service Tuolumne County Resource Advisory Committee AGENCY: Forest Service, USDA. ACTION: Notice of meeting. ----------------------------------------------------------------------- SUMMARY: The Tuolumne County Resource Advisory Committee (RAC) will meet on May 15, 2006 at the City of Sonora Fire Department, in Sonora, California. The primary purpose of the meeting is to review new project proposals. The committee will also review requests for grant extensions and/or changing the focus of approved projects. DATES: The meeting will be held May 15, 2006, from 12 p.m. to 3 p.m. ADDRESSES: The meeting will be held at the City of Sonora Fire Department located at 201 South Shepherd Street, in Sonora, California (CA 95370). FOR FURTHER INFORMATION CONTACT: Pat Kaunert, Committee Coordinator, USDA, Stanislaus National Forest, 19777 Greenley Road, Sonora, CA 95370, (209) 532-3671; E-mail [email protected]. SUPPLEMENTARY INFORMATION: Agenda items include: (1) Review requests for grant extensions and/or changing the focus of previously submitted projects and consider for approval; (2) Review new project proposals; (3) Public comment. This meeting is open to the public. Dated: April 17, 2006. Tom Quinn, Forest Supervisor. [FR Doc. 06-3840 Filed 4-21-06; 8:45 am] BILLING CODE 3410-ED-M

usgpo

2024-10-08T14:08:33.889206

FR

FR-2006-04-24/E6-6041

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20979-20980] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6041] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). Agency: National Oceanic and Atmospheric Administration (NOAA). Title: Capital Construction Fund--Deposit/Withdrawal Report. Form Number(s): None. OMB Approval Number: 0648-0041. Type of Request: Regular submission. Burden Hours: 1,200. Number of Respondents: 3,600. Average Hours Per Response: 20 minutes. Needs and Uses: The respondents are fishermen holding Fishing Vessel Capital Construction Fund (FVCCF) agreements. The FVCCF is a tax-deferral program for fishing vessel construction, acquisition, or reconstruction. Information collected on the NOAA [[Page 20980]] Form 34-82 is used in checking for respondents' compliance with program requirements and for inconsistencies in their reporting to NOAA and the Internal Revenue Service of program-related adjustments to their income. The deposit and withdrawal information is also required, by statute, to be annually reported to the Secretary of Treasury. Affected Public: Business or other for-profit organizations. Frequency: Annually. Respondent's Obligation: Mandatory. OMB Desk Officer: David Rostker, (202) 395-3897. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at [email protected]). Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number (202) 395-7285, or [email protected]. Dated: April 18, 2006. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E6-6041 Filed 4-21-06; 8:45 am] BILLING CODE 3510-22-P

usgpo

2024-10-08T14:08:33.916386

FR

FR-2006-04-24/E6-6042

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 20980] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6042] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request DOC has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35). Agency: U.S. Census Bureau. Title: Survey of Housing Starts, Sales, and Completions. Form Number(s): SOC-Q1/SF.1; SOC-Q1/MF.1. Agency Approval Number: 0607-0110. Type of Request: Extension of a currently approved collection. Burden: 14,688 hours. Number of Respondents: 28,200. Avg Hours Per Response: 5 minutes. Needs and Uses: The U.S. Census Bureau is requesting an extension of the currently approved collection for the Survey of Housing Starts, Sales, and Completions, otherwise known as the Survey of Construction (SOC). Government agencies and private companies use statistics from SOC to monitor and evaluate the large and dynamic housing construction industry. Data for two principal economic indicators are produced from the SOC: New Residential Construction (housing starts and housing completions) and New Residential Sales. In addition, a number of other statistical series are produced, including extensive information on the physical characteristics of new residential buildings, and indexes measuring rates of inflation in the price of new buildings. These statistics are based on a sample of residential buildings in permit- issuing places and a road canvass in a sample of land areas not covered by building permit systems. The field representatives (FRs) mail forms SOC-QI/SF.1 and SOC-QI/ MF.1 to the respondents to complete. A few days later, the FRs either call or visit the respondents to enter their survey responses into a laptop computer using the Computer Assisted Personal Interviewing (CAPI) software formatted for the SOC-QI/SF.1 and SOC-QI/MF.1 forms. The respondents are homebuilders, real estate agents, rental agents, or new homeowners of sampled residential buildings. FR's contact respondents multiple times based on the number of projects in the sample and the number of months required to complete the project. Approximately 28,200 new buildings are added to our sample each year. A total of 176,250 responses are collected annually from all respondents. The Census Bureau uses the information collected in the SOC to publish estimates of the number of new residential housing units started, under construction, completed, and the number of new houses sold and for sale. The Census Bureau also publishes many financial and physical characteristics of new housing units. Government agencies use these statistics to evaluate economic policy, measure progress towards the national housing goal, make policy decisions, and formulate legislation. For example, the Board of Governors of the Federal Reserve System uses data from this survey to evaluate the effect of interest rates in this interest-rate sensitive area of the economy. The Bureau of Economic Analysis uses the data in developing the Gross Domestic Product (GDP). The private sector uses the information for estimating the demand for building materials and the many products used in new housing and to schedule production, distribution, and sales efforts. The financial community uses the data to estimate the demand for short- term (construction loans) and long-term (mortgages) borrowing. Affected Public: Business or other for-profit, Individuals or households. Frequency: Monthly. Respondent's Obligation: Voluntary. Legal Authority: Title 13 U.S.C. 182. OMB Desk Officer: Susan Schechter, (202) 395-5103. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202)482-0266, Department of Commerce, room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at [email protected]). Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Susan Schechter, OMB Desk Officer either by fax (202- 395-7245) or e-mail ([email protected]). Dated: April 18, 2006. Madeleine Clayton, Management Analyst, Office of the Chief Information Officer. [FR Doc. E6-6042 Filed 4-21-06; 8:45 am] BILLING CODE 3510-07-P

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2024-10-08T14:08:33.937994

FR

FR-2006-04-24/E6-6043

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20980-20981] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6043] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Southeast Region Permit Family of Forms AGENCY: National Oceanic and Atmospheric Administration (NOAA). ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. DATES: Written comments must be submitted on or before June 23, 2006. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at [email protected]). FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument and instructions should be directed to Jason Rueter, (727) 824-5350 or [email protected]. [[Page 20981]] SUPPLEMENTARY INFORMATION: I. Abstract National Marine Fisheries Service (NMFS) Southeast Region manages the U.S. fisheries of the Exclusive Economic Zone (EEZ) off the South Atlantic, Caribbean, and Gulf of Mexico under the Fishery Management Plans (FMP) for each Region. The Regional Fishery Management Councils prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. The regulations implementing the FMPs are at 50 CFR part 622. The recordkeeping and reporting requirements at 50 CFR part 622 form the basis for this collection of information. NMFS Southeast Region requests information from fishery participants. This information, upon receipt, results in an increasingly more efficient and accurate database for management and monitoring of the fisheries of the EEZ off the South Atlantic, Caribbean, and Gulf of Mexico. II. Method of Collection Paper applications, electronic reports, and telephone calls are required from participants, and methods of submittal include Internet and facsimile transmission of paper forms. III. Data OMB Number: 0648-0205. Form Number: None. Type of Review: Regular submission. Affected Public: Business or other for-profit organizations. Estimated Number of Respondents: 16,820. Estimated Time per Response: 1 hour and 24 minutes. Estimated Total Annual Burden Hours: 24,121. Estimated Total Annual Cost to Public: $2,887,000. IV. Request for Comments Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: April 18, 2006. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E6-6043 Filed 4-21-06; 8:45 am] BILLING CODE 3510-22-P

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2024-10-08T14:08:33.954129

FR

FR-2006-04-24/E6-6045

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20981-20982] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6045] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE Census Bureau 2007 Economic Census Covering the Information; Professional, Scientific, and Technical Services; Management of Companies and Enterprises; Administrative and Support and Waste Management and Remediation Services; Educational Services; Health Care and Social Assistance; Arts, Entertainment, and Recreation; and Other Services (Except Public Administration) Sectors ACTION: Proposed collection; comment request. ----------------------------------------------------------------------- SUMMARY: The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). DATES: Written comments must be submitted on or before June 23, 2006. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at [email protected]). FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Jack Moody, U.S. Census Bureau, Room 2784, Building 3, Washington, DC 20233-0001 on (301) 763-5181 or via the Internet at [email protected]. SUPPLEMENTARY INFORMATION: I. Abstract The economic census, conducted under the authority of Title 13, United States Code (U.S.C.), is the primary source of facts about the structure and functioning of the Nation's economy. Economic statistics serve as part of the framework for the national accounts and provide essential information for government, business, and the general public. Economic data are the Census Bureau's primary program commitment during nondecennial census years. The 2007 Economic Census covering the Information; Professional, Scientific, and Technical Services; Management of Companies and Enterprises; Administrative and Support and Waste Management and Remediation Services; Educational Services; Health Care and Social Assistance; Arts, Entertainment, and Recreation; and Other Services (Except Public Administration) sectors (as defined by the North American Industry Classification System (NAICS) will measure the economic activity of 2.9 million establishments. The information collected will produce basic statistics by kind of business on the number of establishments, receipts/revenue, expenses, payroll, and employment. It will also yield a variety of subject statistics, including receipts/revenue by product line, receipts/revenue by class of customer, and other industry-specific measures. Primary strategies for reducing burden in Census Bureau economic data collections are to increase reporting through standardized questionnaires and broader electronic data collection methods. II. Method of Collection Mail Selection Procedures Establishments for the mail canvass will be selected from the Census Bureau's Business Register. To be eligible for selection, an establishment will be required to satisfy the following conditions: (i) It must be classified in the information; professional, scientific, and technical services; management of companies and enterprises; administrative and support and waste management and remediation services; educational services; health care and social assistance; arts, entertainment, and recreation; or other services (except public administration) sector; (ii) it must be an active operating establishment of a multi-establishment firm (i.e., a firm that operates at more than one physical location), or it must be a single- establishment firm with payroll (i.e., a firm that operates at only one physical location); and (iii) it must be located in one of the 50 states or the District of Columbia. Mail selection procedures will distinguish the following groups of establishments: [[Page 20982]] 1. Establishments of Multi-Establishment Firms Selection procedures will assign all active operating establishments of multi-establishing firms to the mail component of the potential respondent universe. We estimate that the 2007 Economic Census mail canvasses will include approximately 467,000 establishments of multi-establishment firms. 2. Single-Establishment Firms With Payroll As an initial step in the selection process, we will conduct a study of the potential respondent universe. This study will produce a set of industry-specific payroll cutoffs that we will use to distinguish large versus small single-establishment firms within each industry or kind of business. This payroll size distinction will affect selection as follows: a. Large Single-Establishment Firms Selection procedures will assign single-establishment firms having annualized payroll (from Federal administrative records) that equals or exceeds the cutoff for their industry to the mail component of the potential respondent universe. We estimate that the 2007 Economic Census mail canvasses will include approximately 769,000 large single- establishment firms. b. Small Single-Establishment Firms Selection procedures also will assign a sample of single- establishment firms having annualized payroll below the cutoff for their industry to the mail component of the potential respondent universe. Sampling strata and corresponding probabilities of selection will be determined by a study of the potential respondent universe conducted shortly before mail selection operations begin. We estimate that the 2007 Economic Census mail canvasses will include approximately 79,000 small single-establishment firms selected in this sample. All remaining single-establishment firms with payroll will be represented in the census by data from Federal administrative records. Generally, we will not include these small employers in the census mail canvass. However, administrative records sometimes have fundamental industry classification deficiencies that make them unsuitable for use in producing detailed industry statistics by geographic area. When we find such a deficiency, we will mail the firm a census classification form to collect basic information needed to resolve the problem. We estimate that the 2007 Economic Census mail canvasses for the sectors covered by this submission will include approximately 472,000 small single-establishment firms that receive these classification forms. III. Data OMB Number: Not available. Form Number: The 78 standard forms, 19 classification forms, and 6 ownership or control flyers used to collect information from businesses in these sectors of the economic census are tailored to specific business practices and are too numerous to list separately in the notice. Requests for information on the proposed content of the forms should be directed to Jack Moody, U.S. Census Bureau, Room 2784, Building 3, Washington, DC 20233-0001 on (301) 763-5181 or via the Internet at [email protected]. Type of Review: Regular review. Affected Public: State or local governments, businesses or other for profit, non-profit institutions, and small businesses or organizations. Estimated Number of Respondents: Information: Standard Form--101,197. Classification Form--none. Professional, Scientific, and Technical Services: Standard Form--258,276. Classification Form--117,844. Management of Companies and Enterprises Standard Form--66,020. Classification Form--none. Administrative and Support and Waste Management and Remediation Services: Standard Form--152,050. Classification Form--117,844. Educational Services: Standard Form--24,740. Classification Form--14,141. Health Care and Social Assistance: Standard Form--366,097. Classification Form--89,561. Arts, Entertainment, and Recreation: Standard Form--65,320. Classification Form--18,855. Other Services (Except Public Administration) Standard Form--280,957. Classification Form--113,130. Total: 1,786,032. Estimated Time Per Response: Information: Standard Form--1.2 hours. Classification Form--none. Professional, Scientific, and Technical Services: Standard Form--1.6 hours. Classification Form--.1 hours. Management of Companies and Enterprises Standard Form--.8 hours. Classification Form--none. Administrative and Support and Waste Management and Remediation Services: Standard Form--1.2 hours. Classification Form--.1 hours. Educational Services: Standard Form--.9 hours. Classification Form--.1 hours. Health Care and Social Assistance: Standard Form--1.1 hours. Classification Form--.1 hours. Arts, Entertainment, and Recreation: Standard Form--1.2 hours. Classification Form--.1 hours. Other Services (Except Public Administration) Standard Form--1.0 hours. Classification Form--.1 hours. Estimated Total Annual Burden Hours: 1,601,405 hours. Estimated Total Annual Cost: $39,506,661. Respondent's Obligation: Mandatory. Legal Authority: Title 13, U.S.C., 131 and 224. IV. Request for Comments Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: April 18, 2006. Madeleine Clayton, Management Analyst, Office of the Chief Information Officer. [FR Doc. E6-6045 Filed 4-21-06; 8:45 am] BILLING CODE 3510-07-P

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2024-10-08T14:08:33.987034

FR

FR-2006-04-24/E6-6058

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 20983] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6058] [[Page 20983]] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY: Economic Development Administration, Department of Commerce. ACTION: Notice and opportunity for public comment. ----------------------------------------------------------------------- Pursuant to Section 251 of the Trade Act of 1974 (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. EDA has initiated separate investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each firm contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm. List of Petitions Received by EDA for Certification of Eligibility To Apply for Trade Adjustment Assistance for the Period March 30, 2006 Through April 18, 2006 ---------------------------------------------------------------------------------------------------------------- Date Firm Address petition Product accepted ---------------------------------------------------------------------------------------------------------------- Berliss Bearing Co............. 644 Route 10, 3/30/06 Roller and ball bearings. Livingston, NJ 07039. Inland Tool & Manufacturing 630 South 5th Street, 4/3/06 Stamped parts and tool room projects. Co., Inc. Kansas City, KS 66105. Wood Classics, Inc............. 47 Stevens Lane, 4/3/06 Teakwood outdoor garden and patio Gardiner, NY 12525. furniture. Ray Distributing Co............ 1085 Northside Road, 4/4/06 Fishing supplies. Victoria, TX 77904. Murnch-Kreuzer Candle Co....... 617 E. Hiawatha 4/5/06 Paraffin wax candles. Boulevard, Syracuse, NY 03208. M.S. Willett, Inc.............. 220 Cockeysville Road, 4/5/06 Tool and die and stamping equipment. Cockeysville, MD 21030. Schubert Environmental 2000 Bloomingdale 4/5/06 Industrial air cleaning, dust control and Equipment, Inc. Road, 115, ventilation equipment. Glendale Heights, IL 60139. J.D. Phillips Corp............. 181 North Industrial 4/6/06 Metalworking machinery for the removal of Highway, Alpena, MI metal. 49707. Funblock, Inc.................. 6515 Railroad, 4/10/06 Children's furniture. Raytown, MO 64133. Bless Precision Tool, Inc...... 80 Pacific Drive, 4/10/06 Tooling and machine components. Quakertown, PA 18951. Anderson Copper and Brass Co... 4325 Frontage Road, 4/11/06 Brass fittings and steel adapters. Oak Forest, IL 60452. Columbia Architectural 10722 Tucker Street, 4/11/06 Architectural wall panels. Products, Inc. Beltsville, MD 20705. Security Detection Systems, 11900 Montana Avenue, 4/12/06 Metal detectors. Inc. dba Ranger Security El Paso, TX 79936. Detectors. Crabs, LLC..................... 157 Twin Acres Drive, 4/12/06 Seafood. Lockport, LA 70374. Elenel Industries, Inc. & 500 Fortune Boulevard, 4/18/06 Decorative products and precision parts. Subsidiaries dba Milford, MA 01757. Photofabrication Engineering, Inc. Down Range Manufacturing, LLC.. 4170 North Gun Powder 4/18/06 Shotgun shell cartridges and accessories. Circle, Hastings, NE 68901. Ceramo Company, Inc............ 681 Kasten Drive, 4/18/06 Pottery products. Jackson, MO 63755. ---------------------------------------------------------------------------------------------------------------- Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Office of Chief Counsel, Room 7005, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. Please follow the procedures set forth in Section 315.9 of EDA's interim final rule (70 FR 47002) for procedures for requesting a public hearing. The Catalog of Federal Domestic Assistance official program number and title of the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance. Barry Bird, Chief Counsel. [FR Doc. E6-6058 Filed 4-21-06; 8:45 am] BILLING CODE 3510-24-P

usgpo

2024-10-08T14:08:34.011341

FR

FR-2006-04-24/06-3832

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20983-20984] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3832] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE Bureau of Industry and Security Transportation and Related Equipment Technical Advisory Committee; Notice of Open Meeting The Transportation and Related Equipment Technical Advisory Committee will meet on May 3, 2006, 9:30 a.m., in the Herbert C. Hoover Building, Room 6087B, 14th Street between Pennsylvania & Constitution Avenues, NW., Washington, DC. The [[Page 20984]] Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to transportation and related equipment or technology. Agenda: 1. Welcome and Introductions. 2. Regulatory Overview. 3. Policy Overview. 4. Missile Technology Control Regime. 5. Report on the Wassenaar Experts Group Meeting. 6. Jurisdiction Technical Working Group Report. 7. Proposal by Boeing for a New Working Group Focused on Composite Materials. 8. Presentation of Papers and Comments by the Public. 9. Follow-up on Open Action Items. The meeting willl be open to the public and a limited number of seats wil be available. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materails to Yvette Springer at [email protected] For more information contact Ms. Springer on (202) 482-4814. Dated: April 17, 2006. Yvette Springer, Committee Liaison Officer. [FR Doc. 06-3832 Filed 4-27-06; 8:45 am] BILLING CODE 3510-JT-M

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2024-10-08T14:08:34.024335

FR

FR-2006-04-24/06-3903

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 20984] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3903] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE International Trade Administration Export Trade Certificate of Review ACTION: Notice of Application to Amend an Export Trade Certificate of Review. ----------------------------------------------------------------------- SUMMARY: Export Trading Company Affairs (``ETCA''), International Trade Administration, Department of Commerce, has received an application to amend an Export Trade Certificate of Review (``Certificate''). This notice summarizes the proposed amendment and requests comments relevant to whether the Certificate should be issued. FOR FURTHER INFORMATION CONTACT: Jeffrey Anspacher, Director, Export Trading Company Affairs, International Trade Administration, (202) 482- 5131 (this is not a toll-free number) or E-mail at [email protected]. SUPPLEMENTARY INFORMATION: Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the Federal Register identifying the applicant and summarizing its proposed export conduct. Request for Public Comments Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 7021-B H, Washington, DC 20230. Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as ``Export Trade Certificate of Review, application number 05-A0001.'' A summary of the application for an amendment follows. Summary of the Application: Applicant: Central America Poultry Export Quota, Inc. (``CA-PEQ''), 901 New York Avenue, NW., Third Floor, Washington, DC 20001-4413. Contact: Kyd D. Brenner, Partner, DTB Associates, LLP, Telephone: (202) 661-7098. Application No.: 05-A0001. Date Deemed Submitted: April 12, 2006. The original CA-PEQ Certificate was issued on January 30, 2006 (71 FR 6753, February 9, 2006). Proposed Amendment: CA-PEQ seeks to amend its Certificate to: 1. Add the following company as a new ``Member'' of the Certificate within the meaning of section 325.2(l) of the Regulations (15 CFR 325.2(l)): Federacion de Avicultores de Honduras (``FEDAVIH''), San Pedro Sula, Honduras. Dated: April 19, 2006. Jeffrey C. Anspacher, Director, Export Trading Company Affairs. [FR Doc. 06-3903 Filed 4-21-06; 8:45 am] BILLING CODE 3510-DR-P

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2024-10-08T14:08:34.041170

FR

FR-2006-04-24/E6-6108

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20984-20986] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6108] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 041806D] Atlantic Striped Bass Conservation Act; Atlantic Striped Bass Fishery AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of scoping process; request for comments. ----------------------------------------------------------------------- SUMMARY: Based on recommendations contained in Amendment 6 to Atlantic States Marine Fisheries Commission's (ASMFC) Interstate Fishery Management Plan for Atlantic Striped Bass (Amendment 6) and comments received from an advance notice of proposed rulemaking (ANPR), NMFS previously announced its intent to begin a scoping process to gather information for the preparation of an environmental impact statement (EIS). Initial scoping occurred during nine public hearings in November-December 2003. Due to the significant time that had passed since these initial scoping hearings, NMFS is seeking additional scoping on its preliminary draft analyses of Federal management options to open the EEZ to the harvest of Atlantic Striped Bass. The purpose of this notice is to alert the interested public of this further scoping process and to provide for public participation in compliance with environmental documentation requirements. DATES: Comments on this notice must be received (see ADDRESSES) no later than 5 p.m. Eastern Standard Time on or before May 24, 2006. ADDRESSES: Written comments and requests for copies of the draft document should be sent to: Tom [[Page 20985]] Meyer, State-Federal Fisheries Division, Office of Sustainable Fisheries, NMFS, 1315 East West Highway, Room 13248, Silver Spring, MD 20910. Mark the outside of the envelope ``Striped Bass Scoping.'' An electronic copy of the draft document and supporting documents (ANPR and a Notice of Intent to Prepare an EIS (NOI)) may also be obtained on the State-Federal Fisheries Division's website under Regulatory Activities at http://www.nmfs.noaa.gov/sfa/state_federal/state_federal.htm. Comments may also be sent via fax to (301) 713-0596, or via e-mail to: [email protected]. Include in the subject line of the fax or e-mail the following document identifier: Striped Bass Scoping. FOR FURTHER INFORMATION CONTACT: Tom Meyer, telephone (301) 713-2334, x173. SUPPLEMENTARY INFORMATION: Background An ANPR was published in the Federal Register on July 21, 2003 (68 FR 43074), with the comment period closing on August 20, 2003. The comment period was subsequently reopened on August 26, 2003 (68 FR 51232) for an additional 30-days. NMFS announced that it was considering proposed rulemaking to revise Federal Atlantic striped bass regulations to be compatible with the Atlantic States Marine Fisheries Commission's (ASMFC) Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass (Amendment 6), and was seeking comments on the implementation of ASMFC's recommendations to the Secretary of Commerce (Secretary) to open the EEZ to the harvest of Atlantic striped bass. NMFS also solicited comments on possible alternative management measures and issues that NMFS should consider relative to these recommendations. After review of comments received from the public during the ANPR comment period, NMFS determined there were sufficient issues raised, both in support of and in opposition to the ASMFC recommendation, to warrant further evaluation of the potential impacts of opening the EEZ to striped bass fishing. That determination resulted in the initiation of a decision-making process required under the National Environmental Policy Act (NEPA). A ``Notice of intent to prepare an Environmental Impact Statement (EIS) and notice of scoping process'' (NOI) was published in the Federal Register on October 20, 2003 (68 FR 59906). The notice presented a summary of the ANPR comments, and requested further public input on a list of potential alternatives and other management measures. Public meetings were held in nine Atlantic coast states between November 5 - December 10, 2003, and public comment period closed on December 22, 2003. See ADDRESSES for information on how to obtain a copy of the ANPR or the NOI. Atlantic striped bass management is based on ASMFC's Atlantic Striped Bass Interstate Fishery Management Plan (ISFMP), first adopted in 1981. From 1981 - 1994, four ISFMP Amendments were developed that provided a series of management measures that led to the rebuilding of the stocks. In 1995, ASMFC declared the Atlantic striped bass population fully restored and implemented Amendment 5 to the ISFMP to perpetuate the stock so as to allow a commercial and recreational harvest consistent with the long-term maintenance of the striped bass stock. Since then the population has expanded to record levels of abundance. To maintain this recovered population, ASMFC approved Amendment 6 in February 2003 (copies of Amendment 6 are available via ASMFC's website under Interstate Fisheries Management-striped bass at http://www.asmfc.org). ASMFC believes that the measures contained in Amendment 6 are necessary to prevent the overfishing of the Atlantic striped bass resource while allowing growth in both the commercial and recreational fishery. Development of Amendment 6 took almost 4 years and involved extensive input from technical and industry advisors, and provided numerous opportunities for the public to comment on the future management of the species. Amendment 6 incorporates results of the 2001 Atlantic striped bass stock assessment, developed by the Atlantic Coast States, ASMFC, NMFS, and the U.S. Fish and Wildlife Service (see section 1.2.2 of Amendment 6 for summary). Amendment 6 also included recommendations to the Secretary on the development of complementary measures in the EEZ. Management of Atlantic striped bass in the EEZ was one of the issues that was considered throughout development of Amendment 6. Recommendation to the Secretary In addition to the recommendations to the Secretary in Amendment 6, the Secretary also received a letter on April 24, 2003, from ASMFC with the following three recommendations for implementation of regulations in the EEZ: (1) Remove the moratorium on the harvest of Atlantic striped bass in the EEZ; (2) implement a 28-inch (71.1-cm) minimum size limit for recreational and commercial Atlantic striped bass fisheries in the EEZ; and (3) allow states the ability to adopt more restrictive rules for fishermen and vessels licensed in their jurisdictions. In support of its request, ASMFC cited a number of reasons, including: ASMFC declared the triped bass stock restored in 1995; commercial harvest is controlled by individual state quotas; with the EEZ closed striped bass caught there are required to be discarded, and are often dead when thrown back - Opening the EEZ will convert some of the discarded bycatch of striped bass to landings; and Amendment 6 incorporates measures that would address future concerns about the stock status. See ADDRESSES for information on how to obtain a copy of the NOI, which has a complete list of ASMFC's cited reasons. ASMFC also stated that its Atlantic Striped Bass Technical Committee would monitor annually the Atlantic striped bass population, and, if at some point in the future ASMFC determines that the Atlantic striped bass population is overfished or that overfishing is occurring, it may recommend further management measures for the EEZ. Delay in the Development of an EIS In September 2004, ASMFC's Striped Bass Technical Committee prepared its 2004 Stock Assessment Report for use by the Striped Bass Management Board (Board), which included data through 2003. That assessment contradicted previous assessments, which had indicated that the striped bass population was not overfished and continued to grow in abundance. Instead, the results of the modeling portion of the 2004 assessment indicated that the stock was overfished and that spawning stock biomass had been reduced to below target levels. However, the members of the Technical Committee did not feel the assessment provided an accurate representation of stock status, especially given that results of tagging study analyses did not show a similar increase in fishing mortality. The Technical Committee was concerned with any conclusions that might be derived from these estimated and recommended the 2004 assessment results not be used for management decisions until both the modeling software and the input data sets were reevaluated during the 2005 assessment process. The results from the 2004 stock assessment have not been used by ASMFC for management decisions. With the great uncertainty in estimates of spawning stock biomass, [[Page 20986]] and fishing mortality rates during 2003, as presented in the 2004 stock assessment, NMFS decided to delay the completion of the EIS to be able to incorporate the 2005 stock assessment in the EIS. During 2005, the Technical Committee and Stock Assessment Subcommittee reviewed model inputs and the model itself to determine if the results from the 2004 assessment truly reflected status of the population or were an artifact of data or model errors. They concluded that a number of the indices used in the 2004 effort were not consistent with what was observed in the population as a whole, or were contradictory to the majority of other reliable time series. Those indices were removed from subsequent model runs. The Technical Committee believes the current assessment reflects the true status of the population (within reasonable ranges of certainty). Both the 2004 and 2005 Striped Bass Stock Assessments are available on ASMFC's website under Interstate Fisheries Management-striped bass at http://www.asmfc.org. Addendum I to Amendment 6 During the development of Amendment 6, there were concerns over the impacts of bycatch mortality on the overall population. To address these concerns, ASMFC is currently developing Addendum 1 to Amendment 6 to increase the accuracy of data on striped bass bycatch in all sectors of the striped bass fishery. Addendum I will outline mandatory data collection and bycatch mortality studies for the commercial, recreational, and for-hire fisheries for striped bass. Further Public Participation Due to the significant time that has passed since the nine initial scoping hearings were held in November-December 2003, NMFS is seeking additional scoping on its preliminary draft analyses of Federal management options to open the EEZ to the harvest of Atlantic Striped Bass. See ADDRESSES for information on how to obtain a copy of the draft document and where to send comments. At this time, a preferred option has not been identified. Options being considered in this draft document include: (1) Open the entire EEZ, implement a 28-inch (71.1-cm) minimum size limit, and allow states to adopt more restrictive regulations for fishermen and vessels licensed in their state (ASMFC recommendation); (2) open the entire EEZ, implement a 28-inch (71.1-cm) minimum size limit, allow states to adopt more restrictive regulations for fishermen and vessels licensed in their state, implement a recreational bag limit of 2 fish per day, require circle hooks for all commercial and recreational hook and line fishing using bait, and commercial trip limits and bycatch trip limit options; (3) open the entire EEZ, implement a 28-inch (71.1-cm) minimum size limit, allow states to adopt more restrictive regulations for fishermen and vessels licensed in their state, allow hook and line gear only, implement a recreational bag limit of 2 fish per day, require circle hooks for all commercial and recreational hook and line fishing using bait, and implement a commercial trip limit of 30 fish per trip or day whichever is greater; and (4) status quo - maintain moratorium in EEZ. Authority: 16 U.S.C. 5151 et seq. Dated: April 19, 2006. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E6-6108 Filed 4-21-06; 8:45 am] BILLING CODE 3510-22-S

usgpo

2024-10-08T14:08:34.067672

FR

FR-2006-04-24/06-3831

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 20986-21003] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3831] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 011806L] Small Takes of Marine Mammals Incidental to Specified Activities; Rim of the Pacific (RIMPAC) Antisubmarine Warfare (ASW) Exercise Training Events Within the Hawaiian Islands Operating Area (OpArea) AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; receipt of application and proposed incidental take authorization; request for comments. ----------------------------------------------------------------------- SUMMARY: NMFS has received an application from the U.S. Navy (Navy) for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to conducting RIMPAC ASW training events, in which submarines, surface ships, and aircraft from the United States and multiple foreign nations participate in ASW training exercises, utilizing mid-frequency sonar (1 kilohertz (kHz) to 10 kHz), in the U.S. Navy's Hawaiian Operating Area (OpArea) in the summer of 2006. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an authorization to the Navy to incidentally harass several species of marine mammals during the training exercises. DATES: Comments and information must be received no later than May 24, 2006. ADDRESSES: Comments on the application should be addressed to Steve Leathery, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East- West Highway, Silver Spring, MD 20910-3225. The mailbox address for providing email comments is [email protected]. NMFS is not responsible for e-mail comments sent to addresses other than the one provided here. Comments sent via e-mail, including all attachments, must not exceed a 10-megabyte file size. A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address. In March, 2006, the Navy prepared a revised 2006 Supplement on the 2002 Programmatic Environmental Assessment on RIMPAC. That document will be posted on the Navy's website (http://www.smdcen.us/rimpac06/) concurrently with this notice and the Navy will be accepting public comments. The Navy has also prepared a Draft Environmental Impact Statement (DEIS) for its Undersea Warfare Training Range (USWTR), which contains detailed supporting information for some of the issues discussed in this document and may be viewed at: http://projects.earthtech.com. NMFS' Ocean Acoustics Program has made additional information and references relating to the effects of anthropogenic sound available on the NMFS website at: http://www.nmfs.noaa.gov/pr/acoustics/bibliography.htm. FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected Resources, NMFS, (301) 713-2289, ext 166. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of marine mammals [[Page 20987]] by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. Authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and that the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ''...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.'' Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. The National Defense Authorization Act of 2004 (NDAA) (Public Law 108-136) removed the ``small numbers'' limitation and amended the definition of ``harassment'' as it applies to a ``military readiness activity'' to read as follows: (i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment] Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization. Summary of Request NMFS received an application from the Navy for the taking, by harassment, of several species of marine mammals incidental to conducting RIMPAC ASW training events, in which submarines, surface ships, and aircraft from the United States and multiple foreign nations participate in ASW training exercises, in the OpArea, in the summer of 2006. The RIMPAC ASW exercises are considered a military readiness activity. Based on discussions between the agencies regarding behavioral thresholds and mitigation and monitoring, the Navy submitted a modified application on March 16, 2006. Description of the Activity RIMPAC 2006 ASW activities are scheduled to take place from June 26, 2006, to about July 28, 2006, with ASW training events planned on 21 days. The OpArea is approximately 210,000 square nautical miles (nm), however, nearly all RIMPAC ASW training would occur in the six areas delineated in Figure 2-1 in the Navy's application (approximate 46,000 square nm). ASW events typically rotate between these six modeled areas. Sonar training exercises will occur within these areas for the most part; however, sonar may be operated briefly for battle preparation while forces are in transit from one of the modeled areas to another. These six areas were used for analysis as being representative of the marine mammal habitats and the bathymetric, seabed, wind speed, and sound velocity profile conditions within the entire OpArea. For purposes of this analysis, all likely RIMPAC ASW events were modeled as occurring in these six areas. As a combined force during the exercises, submarines, surface ships, and aircraft will conduct ASW against opposition submarine targets. Submarine targets include real submarines, target drones that simulate the operations of an actual submarine, and virtual submarines interjected into the training events by exercise controllers. ASW training events are complex and highly variable. For RIMPAC, the primary event involves a Surface Action Group (SAG), consisting of one to five surface ships equipped with sonar, with one or more helicopters, and a P-3 aircraft searching for one or more submarines. There will be approximately four SAGs for RIMPAC 2006. For the purposes of analysis, each event in which a SAG participates is counted as an ASW operation. There will be approximately 44 ASW operations during RIMPAC with an average event length of approximately 12 hours. One or more ASW events may occur simultaneously within the OpArea. Each event was identified and modeled separately. If a break of more than 1 hour in ASW operations occurred, then the subsequent event was modeled as a separate event. Training event durations ranged from 2 hours to 24 hours. A total of 532 training hours were modeled for RIMPAC acoustic exposures. This total includes all potential ASW training that is expected to occur during RIMPAC. Active Acoustic Sources Tactical military sonars are designed to search for, detect, localize, classify, and track submarines. There are two types of sonars, passive and active. Passive sonars only listen to incoming sounds and, since they do not emit sound energy in the water, lack the potential to acoustically affect the environment. Active sonars generate and emit acoustic energy specifically for the purpose of obtaining information concerning a distant object from the sound energy reflected back from that object. Modern sonar technology has developed a multitude of sonar sensor and processing systems. In concept, the simplest active sonars emit omnidirectional pulses (``pings'') and time the arrival of the reflected echoes from the target object to determine range. More sophisticated active sonar emits an omnidirectional ping and then rapidly scans a steered receiving beam to provide directional, as well as range, information. More advanced sonars transmit multiple preformed beams, listening to echoes from several directions simultaneously and providing efficient detection of both direction and range. The tactical military sonars to be deployed in RIMPAC are designed to detect submarines in tactical operational scenarios. This task requires the use of the sonar mid-frequency (MF) range (1 kilohertz [kHz] to 10 kHz) predominantly. The types of tactical acoustic sources that would be used in training events during RIMPAC are discussed in the following paragraphs. For more information regarding how the Navy's determined which sources should not be included in their analysis, see the Estimates of Take Section later in this document. Surface Ship Sonars - A variety of surface ships participate in RIMPAC, including guided missile cruisers, destroyers, guided missile destroyers, and frigates. Some ships (e.g., aircraft carriers) do not have any onboard active sonar systems, other than fathometers. Others, like guided missile cruisers, are equipped with active as well as passive sonars for submarine detection and tracking. For purposes of the analysis, all surface ship sonars were modeled as equivalent to SQS-53 having the nominal source level of 235 decibels (dB) re 1mPa2-s (SEL). Since the SQS- [[Page 20988]] 53 hull mounted sonar is the U.S. Navy's most powerful surface ship hull mounted sonar, modeling this source is a conservative assumption tending towards an overestimation of potential effects (although, the conservativeness is offset some by the fact that the Navy did not model for any of the times (though brief and infrequent) that they may use a source level higher than 235 dB). Sonar ping transmission durations were modeled as lasting 1 second per ping and omnidirectional, which is a conservative assumption that overestimates potential exposures, since actual ping durations will be less than 1 second. The SQS-53 hull mounted sonar transmits at center frequencies of 2.6 kHz and 3.3 kHz. Submarine Sonars - Submarine sonars can be used to detect and target enemy submarines and surface ships. However, submarine active sonar use is very rare in the planned RIMPAC exercises, and, when used, very brief. Therefore, use of active sonar by submarines is unlikely to have any effect on marine mammals, and it was not modeled for RIMPAC 2006. Aircraft Sonar Systems - Aircraft sonar systems that would operate during RIMPAC include sonobuoys and dipping sonar. Sonobuoys may be deployed by P-3 aircraft or helicopters; dipping sonars are used by carrier-based helicopters. A sonobuoy is an expendable device used by aircraft for the detection of underwater acoustic energy and for conducting vertical water column temperature measurements. Most sonobuoys are passive, but some can generate active acoustic signals as well. Dipping sonar is an active or passive sonar device lowered on cable by helicopters to detect or maintain contact with underwater targets. During RIMPAC, these systems active modes are only used briefly for localization of contacts and are not used in primary search capacity. Because active mode dipping sonar use is very brief, it is extremely unlikely its use would have any effect on marine mammals. The AN/AQS 13 (dipping sonar) used by carrier based helicopters was determined in the Environmental Assessment/Overseas Environmental Assessment of the SH-60R Helicopter/ALFS Test Program, October 1999, not to be problematic due to its limited use and very short pulse length. Therefore, the aircraft sonar systems were not modeled for RIMPAC 2006. Torpedoes - Torpedoes are the primary ASW weapon used by surface ships, aircraft, and submarines. The guidance systems of these weapons can be autonomous or electronically controlled from the launching platform through an attached wire. The autonomous guidance systems are acoustically based. They operate either passively, exploiting the emitted sound energy by the target, or actively, ensonifying the target and using the received echoes for guidance. All torpedoes used for ASW during RIMPAC would be located in the range area managed by Pacific Missile Range Facility (PMRF) and would be non-explosive and recovered after use. Acoustic Device Countermeasures (ADC) - ADCs are, in effect, submarine simulators that make noise to act as decoys to avert localization and/or torpedo attacks. Previous classified analysis has shown that, based on the operational characteristics (source output level and/or frequency) of these acoustic sources, the potential to affect marine mammals was unlikely, and therefore they were not modeled for RIMPAC 2006. Training Targets - ASW training targets are used to simulate target submarines. They are equipped with one or a combination of the following devices: (1) acoustic projectors emanating sounds to simulate submarine acoustic signatures; (2) echo repeaters to simulate the characteristics of the echo of a particular sonar signal reflected from a specific type of submarine; and (3) magnetic sources to trigger magnetic detectors. Based on the operational characteristics (source output level and/or frequency) of these acoustic sources, the potential to affect marine mammals is unlikely, and therefore they were not modeled for RIMPAC 2006. Range Sources - Range pingers are active acoustic devices that allow each of the in-water platforms on the range (e.g., ships, submarines, target simulators, and exercise torpedoes) to be tracked by the range transducer nodes. In addition to passively tracking the pinger signal from each range participant, the range transducer nodes also are capable of transmitting acoustic signals for a limited set of functions. These functions include submarine warning signals, acoustic commands to submarine target simulators (acoustic command link), and occasional voice or data communications (received by participating ships and submarines on range). Based on the operational characteristics (source output level and/or frequency) of these acoustic sources, the potential to affect marine mammals is unlikely, and therefore they were not modeled for RIMPAC 2006. For detailed information regarding the proposed activity, please see the Navy's application and the associated Environmental Assessment (EA) (see ADDRESSES). Description of Marine Mammals Potentially Affected by the Activity There are 27 marine mammal species with possible or confirmed occurrence in the Navy's OpArea (Table 1): 25 cetacean species (whales, dolphins, and porpoises) and 2 pinnipeds (seals). In addition, five species of sea turtles are known to occur in the OpArea. The most abundant marine mammals are rough-toothed dolphins, dwarf sperm whales, and Fraser's dolphins. The most abundant large whales are sperm whales. There are three seasonally migrating baleen whale species that winter in Hawaiian waters: minke, fin, and humpback whales. Humpback whales utilize Hawaiian waters as a major breeding ground during winter and spring (November through April), but should not be present during the RIMPAC exercise, which takes place in July. Because definitive information on the other two migrating species is lacking, their possible presence during the July timeframe is assumed, although it is considered unlikely. Seven marine mammal species listed as federally endangered under the Endangered Species Act (ESA) occur in the area: the humpback whale, North Pacific right whale, sei whale, fin whale, blue whale, sperm whale, and Hawaiian monk seal. The Navy has used data compiled from available sighting records, literature, satellite tracking, and stranding and bycatch data to identify the species of marine mammals present in the OpArea. A combination of inshore survey data (within 25 nm; Mobley et al., 2000) and offshore data (from 25 nm offshore out to the U.S. EEZ, Barlow 2003) was used to estimate the density and abundance of marine mammals within the OpArea (Table 1). Additional information regarding the status and distribution of the 27 marine mammal species that occur in the OpArea may be found in the Navy's application and the associated EA (See ADDRESSES) and in NMFS' Stock Assessment Reports, which are available at: http://www.nmfs.noaa.gov/pr/PR2/Stock_Assessment_Program/individual_sars.html. BILLING CODE 3510-22-S [[Page 20989]] [GRAPHIC] [TIFF OMITTED] TN24AP06.018 BILLING CODE 3510-22-C [[Page 20990]] Potential Effects on Marine Mammals The Navy has requested an IHA for the take, by harassment, of marine mammals incidental to RIMPAC ASW exercises in the OpArea. Section 101(a)(5)(D) of the MMPA, the section pursuant to which IHAs are issued, may not be used to authorize mortality or serious injury leading to mortality. The Navy's analysis of the RIMPAC ASW exercises concluded that no mortality or serious injury leading to mortality would result from the proposed activities. However, NMFS believes, based on our interpretation of the limited available data bearing on this point, that some marine mammals may react to mid-frequency sonar, at received levels lower than those thought to cause direct physical harm, with behaviors that may, in some circumstances, lead to physiological harm, stranding, or, potentially, death. Therefore, NMFS is proposing to require additional mitigation and monitoring measures that were not originally proposed in the Navy's application to ensure (in addition to the standard statutory requirement to effect the ``least practicable adverse impact upon the affected species or stoc'') that mortality or serious injury leading to mortality does not result from the proposed activities. Below, NMFS describes the potential effects on marine mammals of exposure to tactical sonar. However, due to the mitigation and monitoring required by this IHA, NMFS does not expect marine mammals to be exposed to sound of the strength or duration necessary to potentially induce the more severe of the effects discussed below. Metrics Used in Acoustic Effect Discussions This section includes a brief explanation of the two sound measurements (sound pressure level (SPL) and sound exposure level (SEL)) frequently used in the discussions of acoustic effects in this document. SPL Sound pressure is the sound force per unit area, and is usually measured in micropascals (mPa), where 1 Pa is the pressure resulting from a force of one newton exerted over an area of one square meter. The sound levels to which most mammals are sensitive extend over many orders of magnitude and, for this reason, it is convenient to use a logarithmic scale (the decibel (dB) scale) when measuring sound. SPL is expressed as the ratio of a measured sound pressure and a reference level. The commonly used reference pressure level in underwater acoustics is 1 mPa, and the units for SPLs are dB re: 1 mPa. SPL (in dB) = 20 log (pressure / reference pressure) SPL is an instantaneous measurement and can be expressed as the peak, the peak-peak, or the root mean square (rms). Root mean square, which is the square root of the arithmetic average of the squared instantaneous pressure values, is typically used in discussions of the effects of sounds on vertebrates. SPL does not take the duration of a sound into account. SEL In this proposed authorization, effect thresholds are expressed in terms of sound exposure level SEL. SEL is an energy metric that integrates the squared instantaneous sound pressure over a stated time interval. The units for SEL are dB re: 1 mPa2-s. SEL = SPL + 10log(duration) As applied to tactical sonar, the SEL includes both the ping SPL and the duration. Longer-duration pings and/or higher-SPL pings will have a higher SEL. If an animal is exposed to multiple pings, the SEL in each individual ping is summed to calculate the total SEL. Since mammalian threshold shift (TS) data show less effect from intermittent exposures compared to continuous exposures with the same energy (Ward, 1997), basing the effect thresholds on the total received SEL may be a conservative approach for treating multiple pings; as some recovery may occur between pings and lessen the effect of a particular exposure. The total SEL depends on the SPL, duration, and number of pings received. The acoustic effects on hearing that result in temporary threshold shift (TTS) and permanent threshold shift (PTS), do not imply any specific SPL, duration, or number of pings. The SPL and duration of each received ping are used to calculate the total SEL and determine whether the received SEL meets or exceeds the effect thresholds. For example, the sub-TTS behavioral effects threshold of 173 dB SEL would be reached through any of the following exposures: A single ping with SPL = 173 dB re 1 mPa and duration = 1 second. A single ping with SPL = 170 dB re 1 mPa and duration = 2 seconds. Two pings with SPL = 170 dB re 1 mPa and duration = 1 second. Two pings with SPL = 167 dB re 1 mPa and duration = 2 seconds. Potential Physiological Effects Physiological function is any of a collection of processes ranging from biochemical reactions to mechanical interaction and operation of organs and tissues within an animal. A physiological effect may range from the most significant of impacts (i.e., mortality and serious injury) to lesser effects that would define the lower end of the physiological impact range, such as non-injurious short-term impacts to auditory tissues. Exposure to some types of noise may cause a variety of physiological effects in mammals. For example, exposure to very high sound levels may affect the function of the visual system, vestibular system, and internal organs (Ward, 1997). Exposure to high-intensity sounds of sufficient duration may cause injury to the lungs and intestines (e.g., Dalecki et al., 2002). Sudden, intense sounds may elicit a ``startle'' response and may be followed by an orienting reflex (Ward, 1997; Jansen, 1998). The primary physiological effects of sound, however, are on the auditory system (Ward, 1997). Hearing Threshold Shift In mammals, high-intensity sound may rupture the eardrum, damage the small bones in the middle ear, or over-stimulate the electromechanical hair cells that convert the fluid motions caused by sound into neural impulses that are sent to the brain. Lower level exposures may cause hearing loss, which is called a threshold shift (TS) (Miller, 1974). Incidence of TS may be either permanent, in which case it is called a permanent threshold shift (PTS), or temporary, in which case it is called a temporary threshold shift (TTS). PTS consists of non-recoverable physical damage to the sound receptors in the ear, which can include total or partial deafness, or an impaired ability to hear sounds in specific frequency ranges. TTS is recoverable and is considered to result from temporary, non-injurious impacts to hearing- related tissues. Hearing loss may affect an animal's ability to react normally to the sounds around it. The amplitude, duration, frequency, and temporal pattern of sound exposure all affect the amount of associated TS. As amplitude and duration of sound exposure increase, so, generally, does the amount of TS. For continuous sounds, exposures of equal energy will lead to approximately equal effects (Ward, 1997). For intermittent sounds, less TS will occur than from a continuous exposure with the same energy (some recovery will occur between exposures) (Kryter et al., 1966; Ward, 1997). Additionally, though TTS is temporary, very prolonged exposure to sound strong enough to elicit TTS, or [[Page 20991]] shorter-term exposure to sound levels well above the TTS threshold, can cause PTS, at least in terrestrial mammals (Kryter, 1985). Additional detailed information regarding threshold shifts may be viewed in the Navy's RIMPAC application and in the USWTR DEIS. Acoustically Mediated Bubble Growth One theoretical cause of injury to marine mammals is rectified diffusion (Crum and Mao, 1996), the process of increasing the size of a bubble by exposing it to a sound field. This process could be facilitated if the environment in which the ensonified bubbles exist is supersaturated with gas. Repetitive diving by marine mammals can cause the blood and some tissues to accumulate gas to a greater degree than is supported by the surrounding environmental pressure (Ridgway and Howard, 1979). The deeper and longer dives of some marine mammals (for example, beaked whales) are theoretically predicted to induce greater supersaturation (Houser et al., 2001b). If rectified diffusion were possible in marine mammals exposed to high-level sound, conditions of tissue supersaturation could theoretically speed the rate and increase the size of bubble growth. Subsequent effects due to tissue trauma and emboli would presumably mirror those observed in humans suffering from decompression sickness. It is unlikely that the short duration of sonar pings would be long enough to drive bubble growth to any substantial size, if such a phenomenon occurs. However, an alternative but related hypothesis has also been suggested: stable bubbles could be destabilized by high-level sound exposures such that bubble growth then occurs through static diffusion of gas out of the tissues. In such a scenario the marine mammal would need to be in a gas-supersaturated state for a long enough period of time for bubbles to become of a problematic size. Yet another hypothesis has speculated that rapid ascent to the surface following exposure to a startling sound might produce tissue gas saturation sufficient for the evolution of nitrogen bubbles (Jepson et al., 2003). In this scenario, the rate of ascent would need to be sufficiently rapid to compromise behavioral or physiological protections against nitrogen bubble formation. Collectively, these hypotheses can be referred to as ``hypotheses of acoustically mediated bubble growth.'' Although theoretical predictions suggest the possibility for acoustically mediated bubble growth, there is considerable disagreement among scientists as to its likelihood (Piantadosi and Thalmann, 2004; Evans and Miller, 2003). To date, Energy Levels (ELs) predicted to cause in vivo bubble formation within diving cetaceans have not been evaluated (NOAA, 2002b). Further, although it has been argued that traumas from some recent beaked whale strandings are consistent with gas emboli and bubble-induced tissue separations (Jepson et al., 2003), there is no conclusive evidence of this. Because evidence supporting the potential for acoustically mediated bubble growth is debatable, this proposed IHA does not give it any special treatment. Additionally, the required mitigation measures, which are designed to avoid behavioral disruptions that could result in abnormal vertical movement by whales through the water column, should also reduce the potential for creating circumstances that theoretically contribute to harmful bubble growth. Additional information on the physiological effects of sound on marine mammals may be found in the Navy's IHA application and associated Environmental Assessment, the USWTR DEIS, and on the Ocean Acoustic Program section of the NMFS website (see ADDRESSES). Stress Responses In addition to PTS and TTS, exposure to mid-frequency sonar is likely to result in other physiological changes that have other consequences for the health and ecological fitness of marine mammals. There is mounting evidence that wild animals respond to human disturbance in the same way that they respond to predators (Beale and Monaghan, 2004; Frid, 2003; Frid and Dill, 2002; Gill et al., 2000; Gill and Sutherland, 2001; Harrington and Veitch, 1992; Lima, 1998; Romero, 2004). These responses manifest themselves as interruptions of essential behavioral or physiological events, alteration of an animal's time or energy budget, or stress responses in which an animal perceives human activity as a potential threat and undergoes physiological changes to prepare for a flight or fight response or more serious physiological changes with chronic exposure to stressors (Frid and Dill, 2002; Romero, 2004; Sapolsky et al., 2000; Walker et al., 2005). Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sufficient to trigger a stress response (Sapolsky et al., 2005; Seyle, 1950). Once an animal's central nervous system perceives a threat, it develops a biological response or defense that consists of a combination of the four general biological defense responses: behavioral responses, autonomic nervous system responses, neuroendocrine responses, or immune response. The physiological mechanisms behind stress responses involving the hypothalamus-pituitary-adrenal glands have been well-established through controlled experiment in the laboratory and natural settings (Korte et al. 2005; McEwen and Seeman, 2000; Moberg, 1985; 2000; Sapolsky et al., 2005). Relationships between these physiological processes, animal behavior, neuroendocrine responses, immune responses, inhibition of reproduction (by suppression of pre-ovulatory luteinizing hormones), and the costs of stress responses have also been documented through controlled experiment in both laboratory and free-living animals (for examples see, Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004; Lankford et al., 2005; Reneerkens et al., 2002; Thompson and Hamer, 2000; Tilbrook et al., 2000). The available evidence suggests that: with the exception of unrelieved pain or extreme environmental conditions, in most animals (including humans) chronic stress results from exposure to a series of acute stressors whose cumulative biotic costs produce a pathological or pre-pathological state in an animal. The biotic costs can result from exposure to an acute stressor or from the accumulation of a series of different stressors acting in concert before the animal has a chance to recover. Although these responses have not been explicitly identified in marine mammals, they have been identified in other vertebrate animals and every vertebrate mammal that has been studied, including humans. Because of the physiological similarities between marine mammals and other mammal species, NMFS believes that acoustic energy sufficient to trigger onset PTS or TTS is likely to initiate physiological stress responses. More importantly, NMFS believes that marine mammals might experience stress responses at received levels lower than those necessary to trigger onset TTS. Potential Behavioral Effects For a military readiness activity, Level B Harassment is defined as ``any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural [[Page 20992]] behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.'' As discussed above, TTS consists of temporary, short-term impacts to auditory tissue that alter physiological function, but that are fully recoverable without the requirement for tissue replacement or regeneration. An animal that experiences a temporary reduction in hearing sensitivity suffers no permanent injury to its auditory system, but, for an initial time post-exposure, may not perceive some sounds due to the reduction in sensitivity. As a result, the animal may not respond to sounds that would normally produce a behavioral reaction (such as a predator or the social calls of conspecifics, which play important roles in mother-calf relations, reproduction, foraging, and warning of danger). This lack of response qualifies as a temporary disruption of normal behavioral patterns - the animal is impeded from responding in a normal manner to an acoustic stimulus. NMFS also considers disruption of the behavior of marine mammals that can result from sound levels lower than those considered necessary for TTS to occur (often referred to as sub-TTS behavioral disruption). Though few studies have specifically documented the effects of tactical mid-frequency sonar on the behavior of marine mammals in the wild, many studies have reported the effects of a wide range of intense anthropogenic acoustic stimuli on specific facets of marine mammal behavior, including migration (Malme et al., 1984; Ljungblad et al., 1988; Richardson et al., 1999), feeding (Malme et al., 1988), and surfacing (Nowachek et al., 2004). Below, NMFS summarizes the results of two studies and one after-the-fact investigation wherein the natural behavior patterns of marine mammals exposed to levels of tactical mid- frequency sonar, or sounds similar to mid-frequency sonar, lower than those thought to induce TTS were disrupted to the point where it was abandoned or significantly altered: (1) Finneran and Schlundt (2004) analyzed behavioral observations from related TTS studies (Schlundt et al., 2000; Finneran et al., 2001; 2003) to calculate cetacean behavioral reactions as a function of known noise exposure. During the TTS experiments, 4 dolphins and 2 white whales were exposed during a total of 224 sessions to 1-s pulses between 160 and 204 dB re 1 microPa (root-mean-square sound pressure level (SPL)), at 0.4, 3, 10, 20, and 75 kHz. Finneran and Schlundt (2004) evaluated the behavioral observations in each session and determined whether a ``behavioral alteration'' (ranging from modifications of response behavior during hearing sessions to attacking the experimental equipment) occurred. For each frequency, the percentage of sessions in which behavioral alterations occurred was calculated as a function of received noise SPL. By pooling data across individuals and test frequencies, respective SPL levels coincident with responses by 25, 50, and 75 percent behavioral alteration were documented. 190 dB re 1 microPa (SPL) is the point at which 50 percent of the animals exposed to 3, 10, and 20 kHz tones were deemed to respond with some behavioral alteration, and the threshold that the Navy originally proposed for sub-TTS behavioral disturbance. (2) Nowacek et al. (2004) conducted controlled exposure experiments on North Atlantic right whales using ship noise, social sounds of con- specifics, and an alerting stimulus (frequency modulated tonal signals between 500 Hz and 4.5 kHz). Animals were tagged with acoustic sensors (D-tags) that simultaneously measured movement in three dimensions. Whales reacted strongly to alert signals at received levels of 133-148 dB SPL, mildly to conspecific signals, and not at all to ship sounds or actual vessels. The alert stimulus caused whales to immediately cease foraging behavior and swim rapidly to the surface. Although SEL values were not directly reported, based on received exposure durations, approximate received values were on the order of 160 dB re: 1 microPa\2\-s. (3) NMFS (2005) evaluated the acoustic exposures and coincident behavioral reactions of killer whales in the presence of tactical mid- frequency sonar. In this case, none of the animals were directly fitted with acoustic dosimeters. However, based on a Naval Research Laboratory (NRL) analysis that took advantage of the fact that calibrated measurements of the sonar signals were made in situ and using advanced modeling to bound likely received exposures, estimates of received sonar signals by the killer whales were possible. Received SPL values ranged from 121 to 175 dB re: 1 microPa. The most probable SEL values were 169.1 to 187.4 dB re: 1 microPa\2\-s; worst-case estimates ranged from 177.7 to 195.8 dB re: 1 microPa\2\-s. Researchers observing the animals during the course of sonar exposure reported unusual alterations in swimming, breathing, and diving behavior. For more detailed information regarding how marine mammals may respond to sound, see the Navy's IHA application, the Navy's associated EA, Richardson's Marine Mammals and Noise (1995), or the references cited on NMFS' Ocean Acoustic Program website (see ADDRESSES) Proposed Harassment Thresholds For the purposes of the proposed IHA for this activity, NMFS recognizes three levels of take; Level A Harassment (Injury), Level B Harasssment (Behavioral Disruption), and mortality (or serious injury that may lead to mortality) (Table 2). Mortality, or serious injury leading to mortality, may not be authorized with an IHA. NMFS has determined that for acoustic effects, acoustic thresholds are the most effective way to consistently both apply measures to avoid or minimize the impacts of an action and to quantitatively estimate the effects of an action. Thresholds are commonly used in two ways: (1) To establish a shut-down or power down zone, i.e., if an animal enters an area calculated to be ensonified above the level of an established threshold, a sound source is powered down or shut down; and (2) to calculate take, for example, if the Level A Harassment threshold is 215 dB, a model may be used to calculate the area around the sound source that will be ensonified to that level or above, then, based on the estimated density of animals and the distance that the sound source moves, NMFS can estimate the number of marine mammals exposed to 215 dB. The rationale behind the acoustic thresholds proposed for this authorization are discussed below. [[Page 20993]] ---------------------------------------------------------------------------------------------------------------- Levels of Take Pursuant to the MMPA Basis of Threshold Proposed Threshold ---------------------------------------------------------------------------------------------------------------- Level A harassment (Injury) Permanent Threshold Shift 215 dB (SEL) (PTS) Level B Harassment (Behavioral Effects) Temporary Threshold Shift 195 dB (PTS) Sub-TTS Behavioral Effects 173 dB (SEL) Mortality, or Serious Injury That May Lead to Not enough information for May not be authorized with an Mortality (Stranding) quantitative threshold IHA ---------------------------------------------------------------------------------------------------------------- Table 2. The three levels of take addressed in the MMPA, how NMFS measures them in regard to acoustic effects, and the propsed thresholds for this authorization. TTS Because it is non-injurious, NMFS considers TTS as Level B harassment (behavioral disruption) that is mediated by physiological effects on the auditory system. The smallest measurable amount of TTS (onset-TTS) is taken as the best indicator for slight temporary sensory impairment. However, as mentioned earlier, NMFS believes that behavioral disruptions may result from received levels of tactical sonar lower than those thought to induce TTS and, therefore, NMFS does not consider on-set TTS to be the lowest level at which Level B Harassment may occur. NMFS considers the threshold for Level B Harasment as the received levels from which sub-TTS behavioral disruptions are likely to result (discussed in Sub-TTS sub-section). However, the threshold for Level A Harassment (PTS) is derived from the threshold for TTS and, therefore, it is necessary to describe how the TTS threshold was developed. The proposed TTS threshold is primarily based on the cetacean TTS data from Schlundt et al. (2000). These tests used short-duration tones similar to sonar pings, and they are the most directly relevant data for the establishing TTS criteria. The mean exposure EL required to produce onset-TTS in these tests was 195 dB re 1 microPa\2\-s. This result is corroborated by the short-duration tone data of Finneran et al. (2000, 2003) and the long-duration noise data from Nachtigall et al. (2003a,b). Together, these data demonstrate that TTS in cetaceans is correlated with the received EL and that onset-TTS exposures are fit well by an equal-energy line passing through 195 dB re 1 microPa\2\-s. The justification for establishing the 195 dB acoustic criteria for TTS is described in detail in both the Navy's RIMPAC IHA application and the USWTR DEIS (see ADDRESSES). PTS PTS consists of non-recoverable physical damage to the sound receptors in the ear and is, therefore, classified as Level A harassment under the MMPA. For acoustic effects, because the tissues of the ear appear to be the most susceptible to the physiological effects of sound, and because threshold shifts (TSs) tend to occur at lower exposures than other more serious auditory effects, NMFS has determined that permanent threshold shift (PTS) is the best indicator for the smallest degree of injury that can be measured. Therefore, the acoustic exposure associated with onset-PTS is used to define the lower limit of the Level A harassment. PTS data do not currently exist for marine mammals and are unlikely to be obtained due to ethical concerns. However, PTS levels for these animals may be estimated using TTS data and relationships between TTS and PTS. NMFS proposes the use of 215 dB re 1 mPa\2\-s as the acoustic threshold for PTS. This threshold is based on a 20 dB increase in exposure EL over that required for onset-TTS (195 dB). Extrapolations from terrestrial mammal data indicate that PTS occurs at 40 dB or more of TS, and that TS growth occurs at a rate of approximately 1.6 dB TS per dB increase in EL. There is a 34 dB TS difference between onset-TTS (6 dB) and onset-PTS (40 dB). Therefore, an animal would require approximately 20dB of additional exposure (34 dB divided by 1.6 dB) above onset-TTS to reach PTS. The justification for establishing the 215 dB acoustic criteria for PTS is described in detail in both the Navy's RIMPAC IHA application and the Undersea Warfare Training Range USWTR DEIS (see ADDRESSES). Sub-TTS Behavioral Disruption NMFS believes that behavioral disruption of marine mammals may result from received levels of mid-frequency sonar lower than those believed necessary to induce TTS, and further, that the lower limit of Level B Harassment may be defined by the received sound levels associated with these sub-TTS behavioral disruptions. As of yet, no controlled exposure experiments have been conducted wherein wild cetaceans are deliberately exposed to tactical mid-frequency sonar and their reactions carefully observed. However, NMFS believes that in the absence of controlled exposure experiments, the following investigations and reports (described previously in the Behavioral Effects section) constitute the best available scientific information for establishing an appropriate acoustic threshold for sub-TTS behavioral disruption: (1) Finneran and Schlundt (2004), in which behavioral observations from TTS studies of captive bottlenose dophins and beluga whales are analyzed as a function of known noise exposure; (2) Nowachek et al. (2004), in which controlled exposure experiments were conducted on North Atlantic right whales using ship noise, social sounds of con-specifics, and an alerting stimulus; and (3) NMFS (2005), in which the behavioral reactions of killer whales in the presence of tactical mid-frequency sonar were observed, and analyzed after the fact. Based on these three studies, NMFS has set the sub-TTS behavioral disruption threshold at 173 dB re 1 mPa\2\-s (SEL). The Finneran and Schlundt (2004) analysis is an important piece in the development of an appropriate acoustic threshold for sub-TTS behavioral disruption because: (1) researchers had superior control over and ability to quantify noise exposure conditions; (2) behavioral patterns of exposed marine mammals were readily observable and definable; and, (3) fatiguing noise consisted of tonal noise exposures with frequencies contained in the tactical mid-frequency sonar bandwidth. In Finneran and Schlundt (2004) 190 dB re 1 mPa (SPL) is the point at which 50 percent of the animals exposed to 3, 10, and 20 kHz tones were deemed to respond with some behavioral alteration. This 50 percent behavior alteration level (190 dB SPL) may be converted to an SEL criterion of 190 dB re 1 mPa\2\-s (the numerical values are identical because exposure durations were 1-s), which provides consistency with the Level A (PTS) effects threshold, which are also expressed in SEL. The Navy proposed 190 dB (SEL) as the acoustic threshold for sub-TTS [[Page 20994]] behavioral disruption in the first IHA application they submitted to NMFS. NMFS acknowledges the advantages arising from the use of behavioral observations in controlled laboratory conditions; however, there is considerable uncertainty regarding the validity of applying data collected from trained captives conditioned to not respond to noise exposure in establishing thresholds for behavioral reactions of naive wild individuals to a sound source that apparently evokes strong reactions in some marine mammals. Although wide-ranging in terms of sound sources, context, and type/extent of observations reported, the large and growing body of literature regarding behavioral reactions of wild, naive marine mammals to anthropogenic exposure generally suggests that wild animals are behaviorally affected at significantly lower levels than those determined for captive animals by Finneran and Schlundt (2004). For instance, some cetaceans exposed to human noise sound sources, such as seismic airgun sounds and low frequency sonar signals, have been shown to exhibit avoidance behavior when the animals are exposed to noise levels of 140-160 dB re: 1 mPa under certain conditions (Malme et al., 1983; 1984; 1988; Ljungblad et al., 1988; Tyack and Clark, 1998). Richardson et al. (1995) reviewed the behavioral response data for many marine mammal species and a wide range of human sound sources. Two specific situations for which exposure conditions and behavioral reactions of free-ranging marine mammals exposed to sounds very similar to those proposed for use in RIMPAC are considered by Nowacek et al. (2004) and NMFS (2005) (described previously in Behavioral Effects subsection). In the Nowacek et al. (2004) study, North Atlantic right whales reacted strongly to alert signals at received levels of 133-148 dB SPL, which, based on received exposure durations, is approximately equivalent to 160 dB re: 1 mPa2-s (SEL). In the NMFS (2005) report, unusual alterations in swimming, breathing, and diving behaviors of killer whales observed by researchers in Haro Strait were correlated, after the fact, with the presence of estimated received sound levels between 169.1and 187.4 dB re: 1 mPa\2\-s (SEL). While acknowledging the limitations of all three of these studies and noting that they may not necessarily be predictive of how wild cetaceans might react to mid-frequency sonar signals in the OpArea, NMFS believes that these three studies are the best available science to support the selection of an acoustic sub-TTS behavioral disturbance threshold at this time. Taking into account all three studies, NMFS has established 173 dB re: 1 mPa\2\ (SEL) as the threshold for sub-TTS behavioral disturbance. Stranding and Mortality Over the past 10 years, there have been four stranding events coincident with military mid-frequency sonar use that are believed to most likely have been caused by exposure to the sonar. These occurred in Greece (1996), the Bahamas (2000), Madeira (2000) and Canary Islands (2002). A number of other stranding events coincident to the operation of mid-frequency sonar and resulting in the death of beaked whales or other species (minke whales, dwarf sperm whales, pilot whales) have been reported, though the majority have not been investigated to the level of the Bahamas stranding and, therefore, other causes cannot be ruled out. One of these strandings occurred in Hanalei Bay during the last RIMPAC exercise in 2004. Greece, Madeira, and Canary Islands Twelve Cuvier's beaked whales stranded along the western coast of Greece in 1996. The test of a low- and mid-frequency active sonar system conducted by NATO was correlated with the strandings by an analysis published in Nature. A subsequent NATO investigation found the strandings to be closely related, in time, to the movements of the sonar vessel, and ruled out other physical factors as a cause. In 2000, four beaked whales stranded in Madeira while several NATO ships were conducting an exercise near shore. Scientists investigating the stranding found that the injuries, which included blood in and around the eyes, kidney lesions, and pleural hemorrhage, as well as the pattern of the stranding suggested that a similar pressure event precipitated or contributed to strandings in both Madeira and Bahamas (see Bahamas sub-section). In 2002, at least 14 beaked whales of three different species stranded in the Canary Islands while a naval exercise including Spanish vessels, U.S. vessels, and at least one vessel equipped with mid- frequency sonar was conducted in the vicinity. Four more beaked whales stranded over the next several days. The subsequent investigation, which was reported in both Nature and Veterinary Pathology, revealed a variety of traumas, including emboli and lesions suggestive of decompression sickness. Bahamas NMFS and the Navy prepared a joint report addressing the multi- species stranding in the Bahamas in 2000, which took place within 24 hours of U.S. Navy ships using active mid-frequency sonar as they passed through the Northeast and Northwest Providence Channels. Of the 17 cetaceans that stranded (Cuvier's beaked whales, Blainsville's beaked whales, Minke whales, and a spotted dolphin), seven animals died on the beach (5 Cuvier's beaked whales, 1 Blainsville's beaked whale, and the spotted dolphin) and the other 10 were returned to the water alive (though their fate is unknown). A comprehensive investigation was conducted and all possible causes of the stranding event were considered, whether they seemed likely at the outset or not. The only possible contributory cause to the strandings and cause of the lesions that could not be ruled out was intense acoustic signals (the dolphin necropsy revealed a disease and the death is considered unrelated to the others). Based on the way in which the strandings coincided with ongoing naval activity involving tactical mid-frequency sonar use, in terms of both time and geography, the nature of the physiological effects experienced by the dead animals, and the absence of any other acoustic sources, the investigation team concluded that mid-frequency sonars aboard U.S. Navy ships that were in use during the sonar exercise in question were the most plausible source of this acoustic or impulse trauma. This sound source was active in a complex environment that included the presence of a surface duct, unusual and steep bathymentry, a constricted channel with limited egress, intensive use of multiple, active sonar units over an extended period of time, and the presence of beaked whales that appear to be sensitive to the frequencies produced by these sonars. The investigation team concluded that the cause of this stranding event was the confluence of the Navy mid-frequency sonar and these contributory factors working together, and further recommended that the Navy avoid operating mid-frequency sonar in situations where these five factors would be likely to occur. This report does not conclude that all five of these factors must be present for a stranding to occur, nor that beaked whales are the only species that could potentially be affected by the confluence of the other factors. Based on this, NMFS believes that the presence of surface ducts, steep bathymetry, and/or constricted channels added to the operation of mid-frequency [[Page 20995]] sonar in the presence of cetaceans (especially beaked whales and, potentially, deep divers) may increase the likelihood of producing a sound field with the potential to cause cetaceans to strand, and therefore, necessitates caution. Hanalei Bay Approximately 150-200 melon-headed whales (Peponocephala electra - a deep water species) live stranded (i.e. the animals entered and remained in unusual habitat) in Hanalei Bay on the morning of July 3, 2004 at approximately 7 a.m. RIMPAC exercises involving mid-frequency sonar were conducted on July 3, but the official exercise did not commence until approximately 8 a.m. and, thus, could not have been the original triggering event. However, as six naval surface vessels traveled to the operational area the previous day, each intermittently transmitted active sonar during ``coordinated submarine training exercises'' as they approached Kauai from the south. NMFS conducted a detailed sound propagation analysis of the sonar transmissions of Japanese and U.S. naval vessels transiting from Pearl Harbor to Kauai on the afternoon and evening of 2 July 2004. Predicted sound fields were calculated for five positions along the known tracks. For each ship position where active sonar was used, transit speeds from areas to the south and east of Kauai necessary to reach Hanalei Bay by 7a.m. were determined. These transit rates were then compared with the ship locations and predicted sound fields. Results indicate that animals exposed to military sonar signals near the vessels could have reached the Bay while swimming at rates believed sustainable over relatively long periods for this species. The analysis is by no means conclusive evidence that exposure to tactical sonar on 2 July resulted in the pod of whales stranding in Hanalei Bay on July 3. However, based on these results, NMFS concludes that it was possible that sonar transmissions caused behavioral responses in the animals that led to their swimming away from the sound source, into the sound shadow of the island of Kauai, and entering Hanalei Bay (a shallower environment than they usually inhabit). Further, it is possible that sonar transmissions during the official RIMPAC exercise on July 3 could have prevented some of whales from leaving the Bay (witnesses observed whales attempting several times to depart the Bay, only to return rapidly once just outside it). The Navy modeled the sound transmissions during the event and calculated that the received level at Hanalei Bay from the sonar operated at the PMRF range on July 3 would have been approximately 147.5 dB re 1 mPa. Beaked Whales Recent beaked whale strandings have prompted inquiry into the relationship between mid-frequency active sonar and the cause of those strandings. Although Navy mid-frequency active tactical sonar has been identified as the most plausible contributory source to the 2000 Bahamas stranding event, the specific mechanisms that led to that stranding are not understood, and there is uncertainty regarding the ordering of effects that led to the stranding. It is uncertain whether beaked whales were directly injured by sound (a physiological effect) prior to stranding or whether a behavioral response to sound occurred that ultimately caused the beaked whales to strand and be injured. Several potential physiological outcomes caused by behavioral responses to high-intensity sounds have been suggested by Cox et al. (in press). These include: gas bubble formation caused by excessively fast surfacing; remaining at the surface too long when tissues are supersaturated with nitrogen; or diving prematurely when extended time at the surface is necessary to eliminate excess nitrogen. Baird et al. (2005) found that slow ascent rates from deep dives and long periods of time spent within 50 m of the surface were typical for both Cuvier's and Blainsville's beaked whales, the two species involved in mass strandings related to naval sonar. These two behavioral mechanisms may be necessary to purge excessive dissolved nitrogen concentrated in their tissues during their frequent long dives (Baird et al., 2005). Baird et al. (2005) further suggests that abnormally rapid ascents or premature dives in response to high-intensity sonar could indirectly result in physical harm to the beaked whales, through the mechanisms described above (gas bubble formation or non-elimination of excess nitrogen). During the RIMPAC exercise there will be use of multiple sonar units in an area where three beaked whale species may be present. A surface duct may be present in a limited area for a limited period of time. Although most of the ASW training events will take place in the deep ocean, some will occur in areas of high bathymetric relief. However, none of the training events will take place in a location having a constricted channel with limited egress similar to the Bahamas. Consequently, not all five of the environmental factors believed to contribute to the Bahamas stranding (mid-frequency sonar, beaked whale presence, surface ducts, steep bathymetry, and constricted channels with limited egress) will be present during RIMPAC ASW exercises. However, as mentioned previously, NMFS believes caution should be used anytime either steep bathymetry, surface ducting conditions, or a constricted channel is present in addition to the operation of mid-frequency tactical sonar and the presence of cetaceans (especially beaked whales). In order to avoid the potential for mortality or serious injury leading to mortality (in the form of strandings), NMFS is requiring additional mitigation and monitoring beyond that proposed in the Navy's application. However, given the information regarding beaked whale strandings and the uncertainty regarding the mechanisms for the strandings, NMFS will treat all predicted behavioral disturbance of beaked whales as potential non-lethal injury. All predicted Level B harassment of beaked whales is therefore given consideration as non- lethal Level A harassment. Estimated Take by Incidental Harassment In order to estimate acoustic exposures from the RIMPAC ASW operations, acoustic sources to be used were examined with regard to their operational characteristics. Systems with acoustic source levels below 205 dB re 1 mPa were not included in the analysis given that at this source level (205 dB re 1 mPa) or below, a 1-second ping would attenuate below the behavioral disturbance threshold of 173 dB at a distance of about 100 meters. As additional verification that they did not need to be considered further, sources at this level were modeled, using spreadsheet calculations, to determine the marine mammal exposures estimated to result from their operation. For example, a sonobuoy's typical use yielded an exposure area that produced 0 marine mammal exposures based on the maximum animal density. Such a source was called non-problematic and was not modeled in the sense of running its parameters through the environmental model Comprehensive Acoustic System Simulation (CASS), generating an acoustic footprint, etc. The proposed counter measures source level was less than 205 dB but its operational modes were such that a simple ``look'' was not applicable, and a separate study was conducted to ensure it did not need to be considered further. In addition, systems with an operating frequency greater than 100 kHz were not [[Page 20996]] analyzed in the detailed modeling as these signals attenuate rapidly, resulting in very short propagation distances. Acoustic countermeasures were previously examined and found not to be problematic. The AN/AQS 13 (dipping sonar) used by carrier based helicopters was determined in the Environmental Assessment/Overseas Environmental Assessment of the SH- 60R Helicopter/ALFS Test Program, October 1999, not to be problematic due to its limited use and very short pulse length (2 to 5 pulses of 3.5 to 700 msec). Since 1999, during the time of the test program, there have been over 500 hours of operation, with no environmental effects observed. The Directional Command Activated Sonobuoy System (DICASS) sonobuoy was determined not to be problematic having a source level of 201dB re 1 mPa. These acoustic sources, therefore, did not require further examination in this analysis. Based on the information above, only hull mounted mid-frequency active tactical sonar was determined to have the potential to affect marine mammals protected under the MMPA and ESA during RIMPAC ASW training events. Model An analysis was conducted for RIMPAC 2006, modeling the potential interaction of hull mounted mid-frequency active tactical sonar with marine mammals in the OpArea. The model incorporates site-specific bathymetric data, time-of-year-specific sound speed information, the sound source's frequency and vertical beam pattern, and multipath pressure information as a function of range, depth and bearing. Results were calculated based on the typical ASW activities planned for RIMPAC 2006. Acoustic propagation and mammal population and density data were analyzed for the July timeframe since RIMPAC occurs in July. The modeling occurred in five broad steps, listed below. Step 1. Perform a propagation analysis for the area ensonified using spherical spreading loss and the Navy's CASS/GRAB program, respectively. Step 2. Convert the propagation data into a two-dimensional acoustic footprint for the acoustic sources engaged in each training event as they move through the six acoustic exposure model areas. Step 3. Calculate the total energy flux density level for each ensonified area summing the accumulated energy of all received pings. Step 4. Compare the total energy flux density to the thresholds and determine the area at or above the threshold to arrive at a predicted marine mammal exposure area. Step 5. Multiply the exposure areas by the corresponding mammal population density estimates. Sum the products to produce species sound exposure rate. Analyze this rate based on the annual number of events for each exercise scenario to produce annual acoustic exposure estimates. The modeled estimate indicates the potential for a total of 33,331 Level B harassment exposures across all marine mammal species. The results of the model (estimated Level B Harassment takes (Level A Harassment for beaked whales)) are presented in Table 1. When analyzing the results of the acoustic exposure modeling to provide an estimate of effects, it is important to understand that there are limitations to the ecological data used in the model, and that the model results must be interpreted within the context of a given species' ecology and biology. NMFS believes that the model take estimates are overestimates for the following reasons: (1) The implementation of the extensive mitigation and monitoring that will be required by the IHA (Including large power-down/shut-down zones, geographic restrictions, and monitors that will almost certainly sight groups of animals, if not individuals, in time to avoid/minimize impacts) have not been taken into account. (2) In the model the Navy used to estimate take, marine mammals remain stationary as the sound source passes by and their immediate area is ensonified. NMFS believes that some, if not the majority of animals, will move away from the sound to some degree, thus receiving a lower level of energy than estimated by the model. (3) NMFS interprets the results of the Navy's model as the number of times marine mammals might be exposed to particular received levels of sound. However, NMFS believes it would be unrealistic, considering the fast-paced, multi-vessel nature of the exercise and the fact that the exercise continues over the course of a month in an area with resident populations of cetaceans, to assume that each exposure involves a different whale; some whales are likely to be exposed once, while others are likely to be exposed more than once.Some elements of the Navy's modeling, such as its calculation of received levels without regard to where animals occur in the water column, are conservative. Other elements, such as its evaluation of some but not all acoustic sources that would be used during the exercise, may not be conservative. With regard to RIMPAC 2006, it is NMFS initial view that an extensive set of mitigation and monitoring requirements like those set forth in this notice would ensure that impacts on species and stocks are negligible. This conclusion would not necessarily apply to other naval acoustic activities whose operational and environmental parameters may differ. Additional detailed information regarding potential effects on individual species may be viewed in the Navy's IHA application (see ADDRESSES). Potential Effects on Habitat The primary source of marine mammal habitat impact is acoustic exposures resulting from ASW activities. However, the exposures do not constitute a long term physical alteration of the water column or bottom topography, as the occurrences are of limited duration and are intermittent in time. Surface vessels associated with the activities are present in limited duration and are intermittent as well. Potential Effects on Subsistence Harvest of Marine Mammals There is no known legal subsistence hunting for marine mammals in or near the survey area, so the proposed activities will not have any impact on the availability of the species or stocks for subsistence users. Mitigation, Monitoring, and Reporting The Navy has requested an Incidental Harassment Authorization (IHA) from NMFS for the take, by harassment, of marine mammals incidental to RIMPAC ASW exercises in the OpArea. Section 101(a)(5)(D) of the MMPA, the section pursuant to which IHAs are issued, may not be used to authorize mortality or serious injury leading to mortality. The Navy's analysis of the RIMPAC ASW exercises concluded that no mortality or serious injury leading to mortality would result from the proposed activities. However, NMFS believes that some marine mammals may react to mid-frequency sonar, at received levels lower than those thought to cause direct physical harm, with behaviors that may lead to physiological harm, stranding, or, potentially, death. Therefore, in processing the Navy's IHA request, NMFS has required additional mitigation and monitoring than originally proposed in the Navy's application to ensure that mortality or serious injury leading to mortality does not result from the proposed activities. In any IHA issued there is the requirement to supply the ``means of [[Page 20997]] effecting the least practicable [adverse] impact upon the affected species.'' NMFS' determination of ``the least practicable adverse impact on the affected species'' includes consideration of personnel safety, practicality of implementation, and impact on the effectiveness of military readiness activities. While NMFS' proposed mitigation and monitoring requirements discussed below are intended to effect the ``least practicable adverse impact'', they are also designed to ensure that no mortality or serious injury leading to mortality occurs, so that an IHA may be legally issued under the MMPA. Standard Operating Procedures Proposed in Navy Application Navy shipboard lookout(s) are highly qualified and experienced observers of the marine environment. Their duties require that they report all objects sighted in the water to the Officer of the Deck (e.g., trash, a periscope, a marine mammal) and all disturbances (e.g., surface disturbance, discoloration) that may be indicative of a threat to the vessel and its crew. There are personnel serving as lookouts on station at all times (day and night) when a ship or surfaced submarine is moving through the water. Navy lookouts undergo extensive training in order to qualify as a watchstander. This training includes on-the-job instruction under the supervision of an experienced watchstander, followed by completion of the Personal Qualification Standard program, certifying that they have demonstrated the necessary skills (such as detection and reporting of partially submerged objects). In addition to these requirements, many Fleet lookouts periodically undergo a 2-day refresher training course. The Navy includes marine species awareness as part of its training for its bridge lookout personnel on ships and submarines. Marine species awareness training was updated in 2005 and the additional training materials are now included as required training for Navy lookouts. This training addresses the lookout's role in environmental protection, laws governing the protection of marine species, Navy stewardship commitments, and general observation information to aid in avoiding interactions with marine species. Marine species awareness and training is reemphasized by the following means: Bridge personnel on ships and submarines - Personnel utilize marine species awareness training techniques as standard operating procedure, they have available the ``whale wheel'' identification aid when marine mammals are sighted, and they receive updates to the current marine species awareness training as appropriate. Aviation units - All pilots and aircrew personnel, whose airborne duties during ASW operations include searching for submarine periscopes, report the presence of marine species in the vicinity of exercise participants. Sonar personnel on ships, submarines, and ASW aircraft - Both passive and active sonar operators on ships, submarines, and aircraft utilize protective measures relative to their platform. The Environmental Annex to the RIMPAC Operational Order mandates specific actions to be taken if a marine mammal is detected and these actions are standard operating procedure throughout he exercise. Implementation of these protective measures is a requirement and involves the chain of command with supervision of the activities and consequences for failing to follow orders. Activities undertaken on a Navy vessel or aircraft are highly controlled. Very few actions are undertaken on a Navy vessel or aircraft without oversight by and knowledge of the chain of command. Failure to follow the orders of one's superior in the chain of command can result in disciplinary action. Operating Procedures The following procedures are implemented to maximize the ability of operators to recognize instances when marine mammals are close aboard and avoid adverse effects to listed species: Visual detection/ships and submarines - Ships and surfaced submarines have personnel on lookout with binoculars at all times when the vessel is moving through the water. Standard operating procedure requires these lookouts maintain surveillance of the area visible around their vessel and to report the sighting of any marine species, disturbance to the water's surface, or object (unknown or otherwise) to the Officer in Command. Visual detection/aircraft - Aircraft participating in RIMPAC ASW events will conduct and maintain, whenever possible, surveillance for marine species prior to and during the event. The ability to effectively perform visual searches by participating aircraft crew will be heavily dependent upon the primary duties assigned as well as weather, visibility, and sea conditions. Sightings would be immediately reported to ships in the vicinity of the event as appropriate. Passive detection for submarines - Submarine sonar operators will review detection indicators of close-aboard marine mammals prior to the commencement of ASW operations involving active mid-frequency sonar. When marine mammals are detected close aboard, all ships, submarines, and aircraft engaged in ASW would reduce mid-frequency active sonar power levels in accordance with the following specific actions: (1) Helicopters shall observe/survey the vicinity of an event location for 10 minutes before deploying active (dipping) sonar in the water. Helicopters shall not dip their sonar within 200 yards of a marine mammal and shall secure pinging if a marine mammal closes within 200 yards after pinging has begun. (2) Note: Safety radii, power-down, and shut-down zones proposed by the Navy have been replaced with more conservative measures required by NMFS and are discussed in the next section. The RIMPAC Operational Order Environmental Annex (Appendix A) includes these specific measures that are to be followed by all exercise participants. The Navy proposes that training be provided to exercise participants and NOAA officials before and during the in port phase of RIMPAC (26-30 Jun 06). This will consist of exercise participants (CO/ XO/Ops) reviewing the C3F Marine Mammal Brief, available OPNAV N45 video presentations, and a NOAA brief presented by C3F on marine mammal issues in the Hawaiian Islands. The Navy will also provide the following training for RIMPAC participants: (1)NUWC will train observers on marine mammal identification observation techniques (2)Third fleet will brief all participants on marine mammal mitigation requirements (3)Participants will receive video training on marine mammal awareness (4)Navy offers NOAA/NMFS opportunity to send a rep to the ashore portion of the exercise to address participants and/or observe training. Conservation Measures (Research) The Navy will continue to fund ongoing marine mammal research in the Hawaiian Islands. Results of conservation efforts by the Navy in other locations will also be used to support efforts in the Hawaiian Islands. The Navy is coordinating long term monitoring/ studies of marine mammals on various established ranges and operating areas: (1) Coordinating with NMFS to conduct surveys within the selected [[Page 20998]] Hawaiian Islands Operating Area as part of a baseline monitoring program. (2) Implementing a long-term monitoring program of marine mammal populations in the OpArea, including evaluation of trends. (3) Continuing Navy research and Navy contribution to university/ external research to improve the state of the science regarding marine species biology and acoustic effects. (4) Sharing data with NMFS and the public, via the literature, for research and development efforts. The Navy has contracted with a consortium of researchers from Duke University, University of North Carolina at Wilmington, University of St. Andrews, and the NMFS Northeast Fisheries Science Center to conduct a pilot study analysis and develop a survey and monitoring plan that lays out the recommended approach for surveys (aerial/shipboard, frequency, spatial extent, etc.) and data analysis (standard line- transect, spatial modeling, etc.) necessary to establish a baseline of protected species distribution and abundance and monitor for changes that might be attributed to ASW operations on the Atlantic Fleet Undersea Warfare Training Range. The Research Design for the project will be utilized in evaluating the potential for implementing similar programs in the Hawaiian Islands ASW operations areas. In addition, a Statement of Interest has been promulgated to initiate a similar research and monitoring project in the Hawaiian Islands and the remainder of the Pacific Fleet OPAREAs. The execution of funding to begin the resultant monitoring is planned for the fall of 2006. Reporting The RIMPAC Operational Order Environmental Annex (see example in Appendix A of the application) includes specific reporting requirements related to marine mammals. Additional Proposed Mitigation, Monitoring, and Reporting Measures Required by NMFS The following protective mitigation and monitoring measures are proposed to be implemented in addition to the standard operating procedures discussed in the previous section: (1) The Navy will operate sonar at the lowest practicable level, not to exceed 235 dB, except for occasional short periods of time to meet tactical training objectives. (2) Safety Zones - When marine mammals are detected by any means (aircraft, lookout, or aurally) within 1000 m of the sonar dome (the bow), the ship or submarine will limit active transmission levels to at least 6 dB below the equipment's normal operating level for sector search modes. Within the water depths encompassed by the proposed RIMPAC areas, a 6-dB reduction in ping levels would reduce the range of potential acoustic effects to about half of its original distance. This, in turn, would reduce the area of acoustic effects to about one quarter of its original size. Ships and submarines would continue to limit maximum ping levels by this 6-dB factor until the animal has been seen to leave the area, has not been seen for 30 minutes, or the vessel has transited more than 2000 m beyond the location of the sighting. Should the marine mammal be detected within or closing to inside 500 m of the sonar dome, active sonar transmissions will be limited to at least 10 dB below the equipment's normal operating level for sector search modes. Ships and submarines would continue to limit maximum ping levels by this 10-dB factor until the animal has been seen to leave the area, has not been seen for 30 minutes, or the vessel has transited more than 1500 m beyond the location of the sighting. Should the marine mammal be detected within or closing to inside 200 m of the sonar dome, active sonar transmissions will cease. When a marine mammal or sea turtle is detected closing to inside approximately 200 m of the sonar dome, the principal risk becomes potential physical injury from collision. Accordingly, ships and submarines shall maneuver to avoid collision if the marine species closes within 200 m to the extent possible, with safety of the vessel being paramount. Sonar will not resume until the animal has been seen to leave the area, has not been seen for 30 minutes, or the vessel has transited more than 1200 m beyond the location of the sighting. (3) In strong surface ducting conditions, the Navy will enlarge the safety zones such that a 6-dB power-down will occur if a marine mammal enters the zone within a 2000 m radius around the source, a 10-dB power-down will occur if an animal enters the 1000 m zone, and shut down will occur when an animal closes within 500 m of the sound source. (4) In low visibility conditions (i.e., whenever the entire safety zone cannot be effectively monitored due to nighttime, high sea state, or other factors), the Navy will use additional detection measures, such as infrared (IR) or enhanced passive acoustic detection. If detection of marine mammals is not possible out to the prescribed safety zone, the Navy will power down sonar as if marine mammals were present in the zones they cannot see (for example, at night, if night goggles allow detection out to 1000 m, power-down would not be necessary under normal conditions, however, in strong surface duct conditions, the Navy would need to power down 6 dB, as they could not effectively detect mammals out to 2000 m, the prescribed safety zone ). (5) With the exception of three specific choke-point exercises (special measures outlined in item 8), the Navy will not conduct sonar activities in constricted channels or canyon-like areas. (6) With the exception of three specific choke-point exercises (special measures outlined below), the Navy will not operate mid- frequency sonar within 25 km of the 200 m isobath. (7) Navy watchstanders, the individuals responsible for detecting marine mammals in the Navy's standard operating procedures, will participate in marine mammal observer training by a NMFS-approved instructor (NMFS will work with Navy to develop appropriate format, potentially to be presented to Navy personnel during the port phase of RIMPAC, June 26-30). Training will focus on identification cues and behaviors that will assist in the detection of marine mammals and the recognition of behaviors potentially indicative of injury or stranding. Training will also include information aiding in the avoidance of marine mammals and the safe navigation of the vessel, as well as species identification review (with a focus on beaked whales and other species likely to strand). At least one individual who has received this training will be present, and on watch, at all times during operation of tactical mid-frequency sonar, on each vessel operating mid-frequency sonar. (8) The Navy will conduct no more than three choke-point exercises. These exercises will occur in the Kaulakahi Channel (between Kauai and Niihau) and the Alenuihaha Channel (between Maui and Hawaii). These exercises will not be conducted in a constricted channel like was present in the Bahamas, but will fall outside of the requirements listed above, i.e., to avoid canyon-like areas and to operate sonar farther than 25 km from the 200 m isobath. Therefore, NMFS has required additional mitigation and monitoring measures for these three exercises designed to avoid the possibility of mortality, or serious injury leading to mortality, of marine mammals. The additional measures for these three choke-point exercises below are as follows: [[Page 20999]] a. The Navy will provide NMFS (Stranding Coordinator and Protected Resources, Headquarters) and the Hawaii marine patrol with information regarding the time and place for the choke-point exercises in advance of the exercises. b. The Navy will have at least one dedicated Navy observer that has received the training mentioned above, on board each ship and conducting observations during the operation of mid-frequency tactical sonar during the choke-point exercises. The Navy has also authorized the presence of two experienced marine mammal observers (non-Navy personnel) to embark on Navy ships for observation during the exercise. c. The Navy will coordinate a focused monitoring effort around the choke-point exercises, to include pre-exercise monitoring (2 hours), during-exercise monitoring, and post-exercise monitoring (1-2 days). This monitoring effort will include at least one dedicated aircraft or one dedicated vessel for realtime monitoring from the pre- through post-monitoring time period, except at night. The vessel or airplane may be operated by either dedicated Navy personnel, or non-Navy scientists contracted by the Navy, who will be in regular communication with a Tactical Officer with the authority to shut-down, power-down, or delay the start-up of sonar operations. These monitors will communicate with this Officer to ensure the safety zones are clear prior to sonar start-up, to recommend power-down and shut-down during the exercise, and to extensively search for potentially injured or stranding animals in the area and down-current of the area post-exercise. d. The Navy will further contract an experienced cetacean researchers to conduct systematic aerial reconnaissance surveys and observations before, during, and after the choke-point exercises with the intent of closely examining local populations of marine mammals during the RIMPAC exercise. e. For the Kaulakahi Channel (between Kauai and Niihau), shoreline reconnaissance and nearshore observations will be undertaken by a team located at Kekaha (the approximate mid point of the Channel). One of these individuals was formerly employed by NOAA as a marine mammal observer and trained NOAA personnel in marine mammal observation techniques. Additional observations will be made on a daily basis by range vessels while enroute from Port Allen to the range at PMRF (a distance of approximately 16 nmi) and upon their return at the end of each day's activities. Finally, surveillance of the beach shoreline and nearshore waters bounding PMRF will occur randomly around the clock a minimum four times in each 24 hour period. f. For the Alenuihaha Channel (between Maui and Hawaii), in addition to aerial reconnaissance as described previously, the Navy will undertake shoreline reconnaissance and nearshore observations by a team rotating between Mahukona and Lapakahi before, during, and after the exercise. (9) NMFS and the Navy will continue coordination on the ``Communications and Response Protocol for Stranded Marine Mammal Events During Navy Operations in the Pacific Islands Region'' that is currently under preparation by NMFS PIRO to facilitate communication during RIMPAC. The Navy will coordinate with the NMFS Stranding Coordinator for any unusual marine mammal behavior, including stranding, beached live or dead cetacean(s), floating marine mammals, or out-of-habitat/milling live cetaceans that may occur at any time during or shortly after RIMPAC activities. After RIMPAC, NMFS and the Navy (CPF) will prepare a coordinated report on the practicality and effectiveness of the protocol that will be provided to Navy/NMFS leadership. (10)The Navy will provide a report to NMFS after the completion of RIMPAC that includes: a. An estimate of the number of marine mammals harassed based on both modeled sound and sightings of marine mammals. b. An assessment of the effectiveness of the mitigation and monitoring measures with recommendations of how to improve them. c. Results of the marine species monitoring during the RIMPAC exercise. d. As much unclassified information as the Navy can provide including, but not limited to, where and when sonar was used (including sources not considered in take estimates, such as submarine and aircraft sonars) in relation to any measured received levels (such as at sonobuoys or on PMRF range), source levels, numbers of sources, and frequencies, so it can be coordinated with observed cetacean behaviors. The mitigation and monitoring proposed in this IHA are intended to function adaptively, and NMFS fully expects to refine them for future authorizations based on the reporting input from the Navy. Negligible Impact Determination and Avoidance of Mortality of Marine Mammals Negligible impact is defined as ''...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.'' Because NMFS does not expect any mortality or injury to result from these activities, NMFS believes the authorized takings, by harassment, can be reasonably expected to not adversely affect the species or stock through effects on annual rates of survival. NMFS acknowledges that Level B Harassment to large enough portions of a species or stock or over a long enough time could potentially adversely affect survival rates, however, due to the required mitigation and monitoring during this proposed activity (which reduce the numbers of animals exposed and the levels they are exposed to), as well as the duration and nature of the activities, NMFS does not believe RIMPAC will adversely affect survival. As discussed earlier (see Stress Responses), some portion of the animals exposed to SELs greater than 173 dB during the RIMPAC exercises will undergo a physiological stress response. Relationships between stress responses and inhibition of reproduction (by suppression of pre- ovulatory luteinizing hormones, for example) have been well-documented. However, NMFS believes the manner in which individual animals respond to different stressors varies across a continuum that is normally distributed with hyper-sensitive and hypo-sensitive animals being on the tails of the curve. Therefore, NMFS does not believe that much more than a small portion of animals exposed to sound levels above 173 dB would respond in a manner that physiologically inhibits reproduction. Additionally, suppression of pre-ovulatory luteinizing hormones would only be of a concern to species whose period of reproductive activity overlaps in time and space with RIMPAC. NMFS also believes that due to the enhanced nature of the monitoring required in this authorization, combined with the shutdown zones, the likelihood of seeing and avoiding mother/calf pairs or animals engaged in social reproductive behaviors is high. Consequently, NMFS believes it is unlikely the authorized takings will adversely affect the species stocks through effects on annual rates of recruitment. Table 3 summarizes the reasoning behind NMFS' preliminary negligible [[Page 21000]] impact determination, in terms of how mitigation measures contribute towards it and what other factors were considered. Several of the measures addressed have a visual monitoring component, which NMFS recognizes is most effective in reducing impacts to larger animals and species that travel in larger groups. However, NMFS has also included coastal and steep bathymetry restrictions, and extended power-down/ shut-down zones, which will significantly reduce the numbers of animals taken, regardless of whether they are cryptic or easily seen, and will effectively avoid the likelihood of mortality, or serious injury, of marine mammals. BILLING CODE 3510-22-S [[Page 21001]] [GRAPHIC] [TIFF OMITTED] TN24AP06.019 BILLING CODE 3510-22-C [[Page 21002]] As mentioned in Table 3, the number of individuals harassed, in relation to the abundance of the species or stock, factors into the negligible impact determination. The raw modeled exposure numbers produced by the model do not take into account how any of the mitigation or monitoring measures may reduce the number of exposures. Though no particular numeric reduction of the estimated take numbers as a result of the mitigation measures can be justified, they are qualitatively addressed in Table 3 and NMFS believes the numbers of animals that may be harassed are significantly lower than the number of modeled exposures. Additionally, when further analyzing the effects of these takes on the affected species and stocks, NMFS believes it would be unrealistic, considering the fast-paced, multi-vessel nature of the exercise and the fact that the exercise continues over the course of a month in an area with resident populations of cetaceans, to assume that each exposure involves a different whale. Some whales are likely to be exposed once, while others are likely to be exposed more than once. One way to numerically address this concept is to assume that the exposure events would be distributed normally, with the exposures that each affect a different whale falling within one standard deviation (68.26 percent), the exposures assumed to affect different whales each twice within 2 standard deviations (27.18 percent), the exposures assumed to affect different whales each 3 times within 3 standard deviations (4.28 percent), and so on, if the populations are larger. If this relationship is applied to estimated numbers of exposures produced by the Navy's model, the calculated number of affected animals is approximately 16 percent less than the estimated number of exposures for any given species. NMFS acknowledges the lack of specific sonar/ marine mammal data to support this approach, however, NMFS believes that this approach will help us more closely approximate the number of animals potentially taken than an assumption that each sonar ping affects a different cetacean. To examine the number of individuals harassed in relation to the species or stock, NMFS divided the raw modeled exposures for each species by the estimated abundances to see which species may have relatively large numbers of individuals potentially taken, compared to the population size (Table 1). Per this calculation, all but two species may potentially sustain Level B Harassment of up to a maximum of 38 percent, or less, of the estimated population. Spinner dolphins and false killer whales were calculated to potentially have Level B Harassment of up to 103 percent and 51 percent of the population, respectively. For the reasons stated above, NMFS believes all of the actual percentages will be significantly less. Also, for the spinner dolphins and false killer whales in particular, these percentages are incorrect (too high) because of the following: Spinner dolphins - The estimated abundance of 2,805 animals was derived from one line-transect survey of the Hawaiian Islands EEZ conducted in 2002. The NMFS stock assessment states that the estimate may be negatively biased because relatively little survey effort occurred in the nearshore areas where these dolphins are abundant in the day light hours when the survey was conducted. False killer whales - The estimated abundance of false killer whales is based on 12 aerial surveys conducted within 25 nm of the shore between 1993 and 1998. The NMFS stock assessment report states that the study underestimates the number of false killer whales within the Hawaiian EEZ because areas around the Northwestern Hawaiian Islands and areas beyond 25 nm were not surveyed, and because the data were uncorrected for the portion of diving animals missed from the survey aircraft. To reiterate, NMFS believes that the actual percentages of the stocks affected by this activity are significantly lower than those suggested by the modeled exposures. NMFS has preliminarily determined that with the full implementation of the all of the proposed mitigation and monitoring measures (especially the additional measures required by NMFS), the RIMPAC ASW exercises are highly unlikely to result in the serious injury or death of a marine mammal. In the unanticipated event that any cases of marine mammal injury or mortality are judged by NMFS or Navy to result from these activities, the Navy will cease operating sonar immediately. NMFS has further preliminarily determined that, based on the nature and duration of the proposed activities, and dependent upon the full implementation of the proposed mitigation and monitoring measures, the RIMPAC ASW exercises will result in no more than the Level B Harassment of the species addressed here. The Level B Harassment will consist primarily of temporary behavioral modifications, in the form of temporary displacement from feeding or sheltering areas, low-level physiological stress responses, and, to a lesser extent, TTS. NMFS has further determined that these takings, by harassment, will result in no more than a negligible impact to the affected species or stocks. To be conservative, NMFS and the Navy initially used the approach of treating beaked whales exposed to sound levels thought to induce Level B Harassment as if they would receive Level A Harassment. However, due to the extensive mitigation and monitoring levels, NMFS has preliminarily determined that beaked whales will not experience Level A Harrassment as a result of these exercises. Endangered Species Act (ESA) There are seven marine mammal species and five sea turtle species that are listed as endangered under the ESA with confirmed or possible occurrence in the study area: humpback whale, North Pacific right whale, sei whale, fin whale, blue whale, sperm whale, and Hawaiian monk seal, loggerhead sea turtle, the green sea turtle, hawksbill sea turtle, leatherback sea turtle, and olive ridley sea turtle. Most of the cetacean species and the Hawaiian monk seal are expected to occur in the OpArea during the RIMPAC exercises. As mentioned previously, humpback whales are not believed to be present in the July timeframe. Because definitive information on sei and fin whales is lacking, their possible presence during the July timeframe was assumed, although it is unlikely. Under section 7 of the ESA, the Navy has begun consultation with NMFS on the proposed RIMPAC ASW exercises. NMFS will also consult internally on the issuance of an IHA under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to a determination on the issuance of an IHA. National Environmental Policy Act (NEPA) In April, 2006, the Navy prepared a revised 2006 Supplement on the 2002 Programmatic Environmental Assessment on RIMPAC. This revised EA has been posted on the Navy website (see ADDRESSES) concurrently with the publication of this proposed IHA and public comments have been solicited. Comments on the EA should be addressed to the Navy as outlined in their Federal Register notice announcing the EA's availability for comment. NMFS will review the revised EA and the public comments received and subsequently either adopt it or prepare its own NEPA document before making a determination on the issuance of an IHA. [[Page 21003]] Preliminary Conclusions A determination of negligible impact is required for NMFS to authorize incidental take of marine mammals. By regulation, an activity has a ``negligible impact'' on a species or stock when it is determined that the total taking is not likely to reduce annual rates of adult survival or recruitment (i.e., offspring survival, birth rates). Based on each species' life history information, the expected behavioral patterns of the animals in the RIMPAC locations, the duration of the activity, the anticipated implementation of the required mitigation and monitoring measures, and an analysis of the behavioral disturbance levels in comparison to the overall populations, an analysis of the potential impacts of the Proposed Action on species recruitment or survival support the conclusion that proposed RIMPAC ASW training events would have no more than a negligible impact on the affected species or stocks. NMFS has also determined that the issuance of the IHA would not have an unmitigable adverse impact on the availability of the affected species or stocks for subsistence use. Additionally, NMFS has set forth in this proposed IHA the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings. Proposed Authorization NMFS proposes to issue an IHA to the Navy for conducting ASW exercises, using tactical mid-frequency sonar in the OpArea, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. NMFS has preliminarily determined that the proposed activity would result in only the harassment of marine mammals; would have no more than a negligible impact on the affected marine mammal stocks; and would not have an unmitigable adverse impact on the availability of species or stocks for subsistence uses. Dated: April 18, 2006. James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 06-3831 Filed 4-21-06; 8:45 am] BILLING CODE 3510-22-S

usgpo

2024-10-08T14:08:34.101818

FR

FR-2006-04-24/E6-6046

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 21003] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6046] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 041806C] Pacific Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meeting. ----------------------------------------------------------------------- SUMMARY: The Pacific Fishery Management Council's (Council) Model Evaluation Workgroup (MEW) will hold a work session to develop and review documentation for the Chinook and Coho Fishery Regulation Assessment Models (FRAMs). The meeting is open to the public. DATES: The work session will be held Wednesday, May 10, 2006, from 9 a.m. to 4 p.m. ADDRESSES: The work session will be held at the Northwest Indian Fisheries Commission Conference Room, 6730 Martin Way East, Olympia, WA 98516; telephone: (360) 438-1180. Council address: Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 200, Portland, OR 97220-1384. FOR FURTHER INFORMATION CONTACT: Mr. Chuck Tracy, Salmon Management Staff Officer, Pacific Fishery Management Council, (503) 820-2280. SUPPLEMENTARY INFORMATION: The purpose of the work session is to further develop documentation for the Chinook and Coho FRAM. Although non-emergency issues not contained in the meeting agendas may come before the MEW for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date. Dated: April 19, 2006. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E6-6046 Filed 4-21-06; 8:45 am] BILLING CODE 3510-22-S

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2024-10-08T14:08:34.134873

FR

FR-2006-04-24/E6-6069

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 21003] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6069] ======================================================================= ----------------------------------------------------------------------- COMMODITY FUTURES TRADING COMMISSION Corrections to the Notice of Revision of Commission Policy Regarding the Listing of New Futures and Option Contracts by Foreign Boards of Trade That Have Received Staff No-Action Relief To Provide Direct Access to Their Automated Trading Systems From Locations in the United States AGENCY: Commodity Futures Trading Commission. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: The Commodity Futures Trading Commission is making technical corrections to Footnotes 5 and 6 which were published in the Federal Register on April 18, 2006 (71 FR 19877). The footnotes are revised as follows: Footnote 5: The Statement of Policy did not apply to broad-based stock index futures and option contracts that are now covered by Section 2(a)(1)(C) of the Commodity Exchange Act. Foreign boards of trade were (and presently are) required to seek and receive written supplemental no-action relief from Commission staff prior to offering or selling such contracts through U.S.-located trading systems. Footnote 6: This notice of revision will not alter a foreign board of trade's obligation to seek and receive written supplemental no- action relief from Commission staff prior to offering or selling broad- based securities index futures and option contracts through U.S.- located trading systems. Issued in Washington, DC on April 19, 2006. Jean A. Webb, Secretary of the Commission. [FR Doc. E6-6069 Filed 4-21-06; 8:45 am] BILLING CODE 6351-01-P

usgpo

2024-10-08T14:08:34.158004

FR

FR-2006-04-24/06-3843

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 21004] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3843] [[Page 21004]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Department of the Army Notice of Availability of the Record of Decision for the Final Environmental Impact Statement for the Transformation of the Pennsylvania Army National Guard 56th Brigade Into a Stryker Brigade Combat Team at the National Guard Training Center-Fort Indiantown GAP, PA AGENCY: Department of the Army DoD. ACTION: Notice of availability. ----------------------------------------------------------------------- SUMMARY: The National Guard Bureau and the Department of the Army announce the availability of the Record of Decision (ROD), which explains the decision to proceed with the Transformation of the Pennsylvania Army National Guard (PAARNG) 56th Stryker Brigade Combat Team (SBCT). This action includes construction of new training and support facilities at the National Guard Training Center-Fort Indiantown Gap (NGTC-FTIG), Fort Pickett, VA, and local PAARNG facilities across the Commonwealth of Pennsylvania. The action also includes Annual Training (AT) at Fort A.P. Hill, VA in order to accomplish requisite training. The Final Environmental Impact Statement (FEIS) complies with all applicable requirements, and adequately addresses the biological, physical, socioeconomic, and cultural impacts from implementing the proposed action. ADDRESSES: Written comments or materials should be forwarded to LTC Christopher Cleaver, NGTC-FTIG Public Affairs Officer, PADMVA Headquarters, Building 0-47, Annville, PA 17003-5002, or Ms. Patricia Rickard, NGTC-FTIG EIS Project Officer, NGTC-FTIG Environmental Section, 1119 Utility Road, Annville, PA 17003-5002. FOR FURTHER INFORMATION CONTACT: LTC Christopher Cleaver at (717) 861- 8468 or Ms. Patricia Rickard at (717) 861-2580. SUPPLEMENTARY INFORMATION: The FEIS examined three alternatives: (1) Preferred Alternative--implement all construction actions identified in the FEIS; (2) Train Using Existing Facilities Alternative--using existing PAARNG training ranges and additional facilities at other regional Army installations (outside of Pennsylvania) to fulfill Inactive Duty Training and AT requirements on a temporary to permanent basis; (3) No-Action Alternative--do not implement the proposed action and continue current operations. Significant impacts are anticipated from both Action Alternatives, although the Preferred Alternative would result in greater impacts. The Train Using Existing Army Facilities Alternative would result in fewer impacts, but would not achieve the purpose of and need for the proposed action as effectively as the Preferred Alternative. The FEIS identifies mitigation measures to minimize impacts from the proposed action. Unmitigable impacts are expected to occur to land use associated with establishment of the proposed ``full'' Combined Arms Collective Training Facility (CACTF) at NGTC-FTIG. The proposed CACTF would require the acquisition of up to eight private properties that are in-holdings totaling 18.1 acres. There would be a loss of approximately 224 acres of prime farmland due to construction of statewide facilities, and the permanent removal of up to 745 acres of continuous forest habitat at NGTC-FTIG and approximately 15 acres at Fort Pickett that would not be replaced by similar forest habitat. No Federally designated threatened or endangered species would be significantly affected under the Preferred Alternative. No significant air quality, cultural and water resources, noise, infrastructure, or environmental justice impacts would occur under the Preferred Alternative. In consultation with Federally- recognized Native American Tribes, no significant traditional cultural properties or Native American sacred sites have been identified within areas that would be impacted under the Preferred Alternatives. As such, no impacts to Federally-recognized Native American Tribes or their interests are anticipated. Beneficial socioeconomic impacts are expected as local construction will require local products and manpower. Dated: April 13, 2006. Clyde A. Vaughn, Lieutenant General, U.S. Army, Director, Army National Guard. [FR Doc. 06-3843 Filed 4-21-06; 8:45 am] BILLING CODE 3710-08-M

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2024-10-08T14:08:34.172332

FR

FR-2006-04-24/E6-6059

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 21004] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6059] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Department of the Navy Meeting of the Naval Research Advisory Committee AGENCY: Department of the Navy, DOD. ACTION: Notice of open meeting. ----------------------------------------------------------------------- SUMMARY: The Naval Research Advisory Committee (NRAC) will meet on May 5, 2006. The meeting will be an Executive Session and will discuss a study undertaken by NRAC. DATES: The meeting will be held on Friday, May 5, 2006, from 11 a.m. to 12 p.m. All sessions of the meeting will be open to the public. ADDRESSES: The meeting will be held via telephone conference. Public access to the telephone conference will be available at the Office of Naval Research, 875 North Randolph Street, Arlington, VA 22203-1995. FOR FURTHER INFORMATION CONTACT: Dr. Sujata Millick, Program Director, Naval Research Advisory Committee, 875 North Randolph Street, Arlington, VA 22203-1995, telephone 703-696-6769. SUPPLEMENTARY INFORMATION: This notice is provided in accordance with the provisions of the Federal Advisory Committee Act (5 U.S.C. App. 2). All sessions of the meeting will be devoted to executive sessions to include discussions of the NRAC study on Ocean Sciences Research Vessel Support. Dated: April 13, 2006. Eric Mcdonald, Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy, Federal Register Liaison Officer. [FR Doc. E6-6059 Filed 4-21-06; 8:45 am] BILLING CODE 3810-FF-P

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2024-10-08T14:08:34.198498

FR

FR-2006-04-24/E6-6061

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 21004-21005] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6061] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF EDUCATION Submission for OMB Review; Comment Request AGENCY: Department of Education. SUMMARY: The Director, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before May 24, 2006. ADDRESSES: Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Rachel Potter, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503 or faxed to (202) 395-6974. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or [[Page 21005]] waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Director, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. Dated: April 18, 2006. Jeanne Van Vlandren, Director, Regulatory Information Management Services, Office of Management. Office of Vocational and Adult Education Type of Review: Revision. Title: Adult Education Annual Performance and Financial Reports. Frequency: Annually. Affected Public: State, Local, or Tribal Gov't, SEAs or LEAs. Reporting and Recordkeeping Hour Burden: Responses: 57. Burden Hours: 5,700. Abstract: The information contained in the Annual Performance Reports for Adult Education is needed to monitor the performance of the activities and services funded under the Adult Education and Family Literacy Act of 1998, Report to Congress on the Levels of Performance Achieved on the core indicators of performance, provide necessary outcome information to meet OVAE's Government Performance and Results Act (GPRA) goals for adult education, and provide documentation for incentive awards under Title V of the Workforce Investment Act. The respondents include eligible agencies in 59 states and insular areas. Requests for copies of the information collection submission for OMB review may be accessed from http://edicsweb.ed.gov, by selecting the ``Browse Pending Collections'' link and by clicking on link number 2971. When you access the information collection, click on ``Download Attachments'' to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700. Requests may also be electronically mailed to IC [email protected] or faxed to 202-245- 6623. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to IC [email protected]. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339. [FR Doc. E6-6061 Filed 4-21-06; 8:45 am] BILLING CODE 4000-01-P

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2024-10-08T14:08:34.230811

FR

FR-2006-04-24/E6-6035

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 21005] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6035] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ES06-31-000] Detroit Edison Company; Notice of Filing April 13, 2006. Take the notice that March 31, 2006, Detroit Edison Company filed an application pursuant to section 204 of the Federal Power Act seeking authorization to issue from time to time long-term debt securities in an aggregate principal amount not to exceed $1.0 billion. Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant. The Commission encourages electronic submission of protests and interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 14 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. This filing is accessible on-line at http://www.ferc.gov, using the ``eLibrary'' link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an ``eSubscription'' link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659. Comment Date: 5 p.m. Eastern Time on April 19, 2006. Magalie R. Salas, Secretary. [FR Doc. E6-6035 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

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2024-10-08T14:08:34.256844

FR

FR-2006-04-24/E6-6048

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 21005-21006] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6048] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP06-45-001] Northwest Pipeline Corporation; Notice of Application April 17, 2006. Take notice that on April 5, 2006, Northwest Pipeline Corporation (Northwest), 295 Chipeta Way, Salt Lake City, Utah 84158 filed in Docket No. CP06-45-001, an amendment to the pending application, filed January 4, 2006, pursuant to section 7(c) of the Natural Gas Act (NGA) and part 157 of the Commission's regulations for its ``Parachute Lateral Project'' in Docket No. CP06-45, all as more fully set forth in the application which is on file with the Commission and open for public inspection. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at http://www.ferc.gov using the ``eLibrary'' link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, please contact FERC Online Support at [email protected] or toll free at (866)208-3676, or for TTY, contact (202) 502-8659. Any questions regarding this application may be directed to Steven W. Snarr, General Counsel, Northwest Pipeline Corporation, P.O. Box 58900, Salt Lake City, Utah 84158-0900 at (801) 584-7094 or by fax at (801) 584-7862 or Gary K. Kotter, Manager, Certificates and Tariffs, Northwest Pipeline Corporation, P.O. Box 58900, Salt Lake City, Utah 84158-0900, at [[Page 21006]] (801) 584-7117 or by fax at (801) 584-7764. The proposed Parachute Lateral project, designed to move natural gas production from the Parachute area of the Piceance Basin to the Greasewood Hub, consists of approximately 37.6 miles of 30-inch pipeline and appurtenant facilities in Garfield and Rio Blanco counties, Colorado, one receipt meter station located in Garfield County and two delivery interconnects located in Rio Blanco County, Colorado. By this amendment to the pending application, Northwest now proposes to add an 8-inch tap and valve assembly at approximately milepost 27.41 in Section 9, Township 6S, Range 97W, Garfield County, Colorado, to the originally filed scope of work for the Parachute Lateral project. There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the below listed comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding. However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest. Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order. Motions to intervene, protests and comments may be filed electronically via the internet in lieu of paper; see, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the ``e-Filing'' link. The Commission strongly encourages electronic filings. Comment Date: 5 p.m. Eastern Time on May 8, 2006. Magalie R. Salas, Secretary. [FR Doc. E6-6048 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

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2024-10-08T14:08:34.266419

FR

FR-2006-04-24/E6-6051

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 21006] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6051] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP06-115-000] Texas Eastern Transmission, LP; Notice of Application April 17, 2006. Take notice that on April 4, 2006, Texas Eastern Transmission, LP (Texas Eastern), 5400 Westheimer Court, Houston, Texas 77056-5310 filed in Docket No. CP06-115-000, an application pursuant to section 7 of the Natural Gas Act (NGA) for authorization to construct a new pipeline loop in Ohio, abandon and replace pipeline facilities in Ohio and Pennsylvania, and to install new compression facilities in Pennsylvania for incremental shippers (TIME II Project), all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing may be also viewed on the Web at http://www.ferc.gov using the ``eLibrary'' link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call (866) 208-3676 or TTY, (202) 502- 8659. Any questions concerning this application may be directed to Steven E. Tillman, General Manager, Regulatory Affairs, Texas Eastern Transmission, LP, P.O. Box 1642, Houston, Texas 77251-1642; Phone: 713- 627-5113; Fax: 713-627-5947. There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, before the comment date of this notice, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding. However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the ``e-Filing'' link. Comment Date: May 8, 2006. Magalie R. Salas, Secretary. [FR Doc. E6-6051 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

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2024-10-08T14:08:34.292714

FR

FR-2006-04-24/E6-6052

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 21007-21008] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6052] [[Page 21007]] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings 1 April 17, 2006. Take notice that the Commission received the following electric rate filings. Docket Numbers: ER03-1047-001. Applicants: Mirant Las Vegas, LLC. Description: Mirant's letter to the Commission concerning its compliance filing submitted July 9, 2003. Filed Date: March 27, 2006. Accession Number: 20060327-5032 Comment Date: 5 p.m. Eastern Time on Monday, April 24, 2006. Docket Numbers: ER05-1497-002. Applicants: Dearborn Industrial Generation, LLC. Description: Dearborn Industrial Generation, LLC submits an Erratum to its February 21, 2006, Late Filed Compliance Filing. Filed Date: April 7, 2006. Accession Number: 20060411-0028. Comment Date: 5 p.m. Eastern Time on Friday, April 21, 2006. Docket Numbers: ER06-580-002. Applicants: Midwest Independent Transmission System Operator, Inc. Description: The Midwest Independent Transmission System Operator, Inc. submits an amended coversheet to its First Revised Network Integration Service Agreement filed February 22, 2006. Filed Date: April 11, 2006. Accession Number: 20060417-0182. Comment Date: 5 p.m. Eastern Time on Monday, April 24, 2006. Docket Numbers: ER06-650-001. Applicants: PJM Interconnection, LLC. Description: PJM Interconnection, LLC submits a substitute interconnection service agreement with Calvert Cliffs Nuclear Power Plant, Inc and Baltimore Gas and Electric Company. Filed Date: April 11, 2006. Accession Number: 20060414-0117. Comment Date: 5 p.m. Eastern Time on Tuesday, May 2, 2006. Docket Numbers: ER06-679-001. Applicants: Louisville Gas & Electric Company. Description: LG&E Energy submits a revised executed letter agreement with East Kentucky Power Cooperative which will be designated as Original Sheets 17 and 18 in 1st Revised Rate Schedule 25. Filed Date: April 10, 2006. Accession Number: 20060414-0120. Comment Date: 5 p.m. Eastern Time on Monday, May 1, 2006. Docket Numbers: ER06-746-001. Applicants: Equilon Enterprises LLC. Description: Equilon Enterprises, LLC dba Shell Oil Products U.S. submits an amendment to its March 16, 2006 filing, correcting typographical errors to its proposed tariff. Filed Date: April 10, 2006. Accession Number: 20060414-0116. Comment Date: 5 p.m. Eastern Time on Monday, May 1, 2006. Docket Numbers: ER06-747-001. Applicants: Equilon Enterprises LLC. Description: Equilon Enterprises, LLC dba Shell Oil Products U.S. submits an amendment to its March 16, 2006 filing, correcting typographical errors to its proposed tariff. Filed Date: April 10, 2006. Accession Number: 20060414-0114. Comment Date: 5 p.m. Eastern Time on Monday, May 1, 2006. Docket Numbers: ER06-748-001. Applicants: Shell Chemical LP. Description: Shell Chemical LP submits an amendment to its March 16, 2006 filing. Filed Date: April 10, 2006. Accession Number: 20060414-0122. Comment Date: 5 p.m. Eastern Time on Monday, May 1, 2006. Docket Numbers: ER06-763-001. Applicants: Motiva Enterprises LLC. Description: Motiva Enterprises, LLC submits an amendment to its March 16, 2006 proposed market-based rate tariff filing. Filed Date: April 10, 2006. Accession Number: 20060414-0115. Comment Date: 5 p.m. Eastern Time on Monday, May 1, 2006. Docket Numbers: ER06-770-001. Applicants: PPM Energy, Inc. Description: PPM Energy, Inc submits corrections to their proposed amended, respective, market-based rate schedules filed on March 20, 2006. Filed Date: April 11, 2006. Accession Number: 20060414-0118. Comment Date: 5 p.m. Eastern Time on Friday, April 21, 2006. Docket Numbers: ER06-841-000. Applicants: Entergy Services Inc. Description: Entergy Services Inc, agent and on behalf of the Entergy Operating Companies submits amendments to the Entergy System Agreement. Filed Date: April 10, 2006. Accession Number: 20060414-0314. Comment Date: 5 p.m. Eastern Time on Monday, May 1, 2006. Docket Numbers: ER06-842-000. Applicants: Palomar Energy, LLC. Description: Palomar Energy LLC submits a notice of termination of its FERC Electric Rate Schedule 1. Filed Date: April 10, 2006. Accession Number: 20060414-0308. Comment Date: 5 p.m. Eastern Time on Monday, May 1, 2006. Docket Numbers: ER06-844-000. Applicants: LSF Limited. Description: LSF Limited submits its Petition of Initial Rate Schedule, Waivers and Blanket Authority under ER06-844. Filed Date: April 11, 2006. Accession Number: 20060417-0186. Comment Date: 5 p.m. Eastern Time on Tuesday, May 2, 2006. Docket Numbers: ER06-845-000. Applicants: Northwestern Wisconsin Electric Company. Description: Northwestern Wisconsin Electric Co submits a proposed rate change to its original FERC Rate Schedule No. 2, effective May 1, 2006. Filed Date: April 11, 2006. Accession Number: 20060417-0187. Comment Date: 5 p.m. Eastern Time on Tuesday, May 2, 2006. Docket Numbers: ER06-846-000. Applicants: Public Service Company of Colorado. Description: Xcel Energy Services Inc on behalf of Public Service Co of Colorado submits an amended and restated version of its October 28, 1992 Contract for Transmission Service w/ Tri-State Generation and Transmission Association Inc, effective April 12, 2006. Filed Date: April 11, 2006. Accession Number: 20060417-0188. Comment Date: 5 p.m. Eastern Time on Tuesday, May 2, 2006. Docket Numbers: ER96-795-013. Applicants: Gateway Energy Marketing. Description: Gateway Energy Marketing submits its amended and updated market power analysis and revised tariff sheets pursuant to the Commission's May 31, 2005 order. Filed Date: April 10, 2006. Accession Number: 20060414-0306. Comment Date: 5 p.m. Eastern Time on Monday, May 1, 2006. Docket Numbers: ER98-4333-002. Applicants: Primary Power Marketing, L.L.C. Description: Primary Power Marketing LLC submits a revised updated power market analysis out-of time, pursuant to the Commission's May 31, 2005 order. Filed Date: April 10, 2006. Accession Number: 20060411-0147. Comment Date: 5 p.m. Eastern Time on Monday, May 1, 2006. Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 [[Page 21008]] and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant. The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests. Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426. The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail [email protected]. or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659. Magalie R. Salas, Secretary. [FR Doc. E6-6052 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

usgpo

2024-10-08T14:08:34.308432

FR

FR-2006-04-24/E6-6053

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 21008-21009] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6053] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings 1 April 18, 2006. Take notice that the Commission received the following electric rate filings. Docket Numbers: ER03-478-011. Applicants: PPM Energy, Inc. Description: PPM Energy, Inc. submits its motion to terminate refund liability to reflect PPM's recent corporate disaffiliation with PacifiCorp. Filed Date: April 10, 2006. Accession Number: 20060417-0205. Comment Date: 5 p.m. Eastern Time on Monday, May 1, 2006. Docket Numbers: ER06-20-002. Applicants: Louisville Gas & Electric Company. Description: LG&E Energy, LLC submits revisions to its proposed open-access transmission tariff to implement the ``hold harmless commitment'' under the MISO Transmission Owner Agreement etc., pursuant to March 17, 2006 order. Filed Date: April 11, 2006. Accession Number: 20060417-0225. Comment Date: 5 p.m. Eastern Time on Tuesday, May 2, 2006. Docket Numbers: ER06-278-003. Applicants: The Nevada Hydro Company, Inc. Description: Nevada Hydro Company, Inc. submits a supplemental response to FERC's February 17, 2006 request for additional information. Filed Date: April 7, 2006. Accession Number: 20060417-0190. Comment Date: 5 p.m. Eastern Time on Friday, April 28, 2006. Docket Numbers: ER06-313-000. Applicants: Midwest Independent Transmission System Operator, Inc. Description: Midwest Independent Transmission System Operator, Inc. submits an informational filing regarding suspension of the monthly financial transmission rights auction for June 2006, et al. Filed Date: April 11, 2006. Accession Number: 20060413-0142. Comment Date: 5 p.m. Eastern Time on Tuesday, May 2, 2006. Docket Numbers: ER06-561-001. Applicants: Southern Company Services, Inc. Description: Southern Company Services Inc. agent for Alabama Power Co. et al. submits its response to FERC's March 8, 2006 deficiency letter. Filed Date: April 7, 2006. Accession Number: 20060417-0189. Comment Date: 5 p.m. Eastern Time on Friday, April 28, 2006. Docket Numbers: ER06-576-001. Applicants: Southern Company Services, Inc. Description: Southern Company Services Inc. agent for Alabama Power C.o et al. submits its response to FERC's March 8, 2006 deficiency letter. Filed Date: April 7, 2006. Accession Number: 20060417-0191. Comment Date: 5 p.m. Eastern Time on Friday, April 28, 2006. Docket Numbers: ER06-843-000. Applicants: Northeast Utilities Service Company. Description: Northeast Utilities Service Company submits a notice of Cancellation of Service Agreement 8 for Firm Transmission Service with Unitil Power Corp. Filed Date: April 11, 2006. Accession Number: 20060417-0185. Comment Date: 5 p.m. Eastern Time on Tuesday, May 2, 2006. Docket Numbers: ER06-847-000; ER05-1235-001. Applicants: MidAmerican Energy Company. Description: MidAmerican Energy Co submits First Revised Sheet 497 et al. to Electric Tariff, Second Revised Volume 8 to their OATT in compliance with FERC's December 16, 2005 order. Filed Date: April 7, 2006. Accession Number: 20060417-0216. Comment Date: 5 p.m. Eastern Time on Friday, April 28, 2006. Docket Numbers: ER06-848-000. Applicants: Appalachian Power Company. Description: AEP on behalf of Appalachian Power Co submits a cost- based formula rate agreement for full requirements electric service between AEP Service Corp and Black Diamond Power Co et al. Filed Date: April 6, 2006. Accession Number: 20060417-0183. Comment Date: 5 p.m. Eastern Time on Tuesday, April 25, 2006. Docket Numbers: ER06-849-000. Applicants: Midwest Independent Transmission System Operator, Inc. Description: Midwest Independent Transmission System Operator Inc. submits the proposed revisions to Attachment L (Credit Policy) of its Open Access Transmission and Energy Markets Tariff, et al. Filed Date: April 7, 2006. Accession Number: 20060417-0184. Comment Date: 5 p.m. Eastern Time on Friday, April 28, 2006. Docket Numbers: ER06-850-000. Applicants: Northeast Utilities Service Company. [[Page 21009]] Description: Northeast Utilities Service Co. submits a Notice of Cancellation of NU Companies Service Agreement 16 under ISO New England's Electric Tariff 3 Attachment E, Schedule 21-NU. Filed Date: April 6, 2006. Accession Number: 20060417-0176. Comment Date: 5 p.m. Eastern Time on Thursday, April 27, 2006. Docket Numbers: ER06-851-000. Applicants: Northeast Utilities Service Company. Description: Northeast Utilities Service Co. submits a Notice of Cancellation of NU Companies Service Agreement 22 under ISO New England's Electric Tariff 3 Attachment E, Schedule 21-NU. Filed Date: April 6, 2006. Accession Number: 20060417-0177. Comment Date: 5 p.m. Eastern Time on Thursday, April 27, 2006. Docket Numbers: ER06-852-000. Applicants: Northeast Utilities Service Company. Description: Northeast Utilities Services Co. submits a notice of cancellation of NU Companies Services Agreement 17 under ISO New England's Electric Tariff 3 Attachment E, Schedule 21-NU. Filed Date: April 6, 2006. Accession Number: 20060417-0178. Comment Date: 5 p.m. Eastern Time on Thursday, April 27, 2006. Docket Numbers: ER06-853-000. Applicants: Northeast Utilities Service Company. Description: Northeast Utilities Services Co. submits s a notice of cancellation of NU Companies Service Agreement 28, 29 & 30 under ISO New England's Electric Tariff 3 Attachment E, Schedule 21-NU. Filed Date: April 6, 2006. Accession Number: 20060417-0179. Comment Date: 5 p.m. Eastern Time on Thursday, April 27, 2006. Docket Numbers: ER06-854-000. Applicants: Northeast Utilities Service Company. Description: Northeast Utilities Service Co. submits a notice of cancellation of NU Companies Service Agreement 19 under ISO New England Inc. Electric Tariff No. 3 Attachment E, Schedule 21-NU. Filed Date: April 6, 2006. Accession Number: 20060417-0180. Comment Date: 5 p.m. Eastern Time on Thursday, April 27, 2006. Docket Numbers: ER06-855-000. Applicants: Northeast Utilities Service Company. Description: Northeast Utilities Service Co. submits a notice of cancellation of NU Companies Service Agreements 24 & 25 under ISO New England's Electric Tariff No. 3 Attachment E. Schedule 21-NU. Filed Date: April 6, 2006. Accession Number: 20060417-0181. Comment Date: 5 p.m. Eastern Time on Thursday, April 27, 2006. Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant. The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests. Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426. The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail [email protected]. or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659. Magalie R. Salas, Secretary. [FR Doc. E6-6053 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

usgpo

2024-10-08T14:08:34.329293

FR

FR-2006-04-24/E6-6036

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 21009-21010] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6036] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Application for Non-Project Use of Project Lands and Waters and Soliciting Comments, Motions To Intervene, and Protests April 13, 2006. Take notice that the following application has been filed with the Commission and is available for public inspection: a. Application Type: Non-Project Use of Project Lands and Waters. b. Project No.: 349-106. c. Date filed: March 22, 2006. d. Applicant: Alabama Power Company. e. Name of Project: Martin Dam Project. f. Location: The project is located on the Tallapoosa River in Coosa and Elmore Counties, Alabama. g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r) and 799 and 801. h. Applicant Contact: Keith E. Bryant, 600 18th Street North, Birmingham, AL 35203, (205) 257-1403. i. FERC Contact: Rebecca Martin at 202-502-6012, or e-mail [email protected]. j. Deadline for filing comments and or motions: May 15, 2006. All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426. Please include the project number (P-349-106) on any comments or motions filed. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the ``e-Filing'' link. The Commission strongly encourages e-filings. k. Description of Application: The licensee requests Commission approval of a permit application, filed by the North Lake Condo Club, to build three uncovered floating boat dock structures providing a total of 42 bays for boats. Each bay will measure approximately 10 feet wide by 23 feet long. There will be no dredging associated with this project. [[Page 21010]] l. Location of Application: The filing is available for review at the Commission in the Public Reference Room, located at 888 First Street, NE., Room 2A, Washington, DC 20426, or may be viewed on the Commission's Web site at http://www.ferc.gov using the ``e-Library'' link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, please contact FERC Online support at [email protected] or toll free (866) 208-3676 or TTY, contact (202) 502-8659. m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission. n. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. o. Filing and Service of Responsive Documents: Any filings must bear in all capital letters the title ``COMMENTS'', ``RECOMMENDATIONS FOR TERMS AND CONDITIONS'', ``PROTEST'', or ``MOTION TO INTERVENE'', as applicable, and the Project Number of the particular application to which the filing refers. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application. p. Agency Comments: Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. q. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at http://www.ferc.gov under the ``e-Filing'' link. Magalie R. Salas, Secretary. [FR Doc. E6-6036 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

usgpo

2024-10-08T14:08:34.347160

FR

FR-2006-04-24/E6-6047

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 21010-21011] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6047] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Application for Amendment of License and Soliciting Comments, Motions To Intervene, and Protests April 17, 2006. Take notice that the following application has been filed with the Commission and is available for public inspection: a. Application Type: Amendment of License to Increase its Authorized Generating Capacity. b. Project No.: 5984-055. c. Date Filed: March 15, 2006. d. Applicant: Erie Boulevard Hydropower, L.P. e. Name of Project: Oswego Falls Project. f. Location: The project is located on the Oswego River in Oswego and Onondaga Counties in New York. g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r. h. Applicant Contact: David W. Culligan, P.E., Licensing Coordinator, Brookfield Power, New York Operations, 225 Greenfield Parkway, Suite 201, Liverpool, NY 13088, Tel: (315) 413-2792, Fax: (315) 461-8577. i. FERC Contact: Any questions on this notice should be addressed to Mr. Jake Tung at (202) 502-8757, or e-mail address: [email protected]. j. Deadline for filing comments and or motions: May 1, 2006. k. Description of Request: The licensee proposes to perform a maintenance upgrade to its existing 400 kW generating unit 3 at the West Side Development. The upgrade of unit 3 consists of: (1) Replacing the unit's horizontal quadruplex Francis turbine unit with two new, vertical propeller units, each rated 800 horsepower (600 kW) at 16.7 feet net head; (2) replacing the unit's horizontal generator with two new vertical generators, each rated 550 kW; (3) retiring the existing 400 kW generating unit 3 in place in the powerhouse; and (4) modifying the existing intake flume floor to accommodate the installation of the new units. When the unit upgrade is complete, the licensee states that the project's installed capacity would increase from 6,760 kW to 7,360 kW, or 8.8%, and turbine hydraulic discharge from 6,490 cfs to 6,922 cfs, or 6.6%. l. Locations of Applications: A copy of the application is available for inspection and reproduction at the Commission in the Public Reference Room, located at 888 First Street, NE., Room 2A, Washington DC 20426, or by calling (202) 502-8371. This filing may also be viewed on the Commission's Web site at http://www.ferc.gov using the ``eLibrary'' link. Enter the docket number excluding the last three digits in the docket number field to access the document. You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via e-mail of new filings and issuances related to this or other pending projects. For assistance, call toll-free 1-866-208-3676 or e-mail [email protected]. For TTY, call (202) 502-8659. A copy is also available for inspection and reproduction at the address in item (h) above. m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission. n. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. o. Filing and Service of Responsive Documents: Any filings must bear in all capital letters the title ``COMMENTS'', ``RECOMMENDATIONS FOR TERMS AND CONDITIONS'', ``PROTEST'', or ``MOTION TO INTERVENE'', as applicable, and the Project Number of the particular application to which the filing refers. All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application. p. Agency Comments: Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the [[Page 21011]] Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. q. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at http://www.ferc.gov under the ``e-Filing'' link. Magalie R. Salas, Secretary. [FR Doc. E6-6047 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

usgpo

2024-10-08T14:08:34.368288

FR

FR-2006-04-24/E6-6049

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 21011-21012] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6049] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Application Accepted for Filing and Soliciting Motions To Intervene, Protests, and Comments April 17, 2006. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. Type of Application: Preliminary Permit. b. Project No.: 12656-000. c. Date filed: February 22, 2006. d. Applicant: Samaria Water and Irrigation Company. e. Name of Project: Samaria Hydroelectric Project. f. Location: Dry Pine Canyon, Rose Bud Canyon, Thomas Davis Canyon Tributary to Samaria Creek in Oneida County, Idaho. g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r). h. Applicant Contact: Mr. David Reel, Samaria Water and Irrigation Company, 5176 South 4400 West, Malad, ID 83252, (208) 766-2828, [email protected]. i. FERC Contact: Patricia W. Gillis at (202) 502-8735. j. Deadline for filing comments, protests, and motions to intervene: 60 days from the issuance date of this notice. The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. Description of Project: The proposed project would consist of: (1) Replacing the existing drop, divert the flows from Dry Pine Canyon, Rose Bud Canyon and Thomas Davis Canyon through approximately 9,000 feet of 12-inch diameter pipe, into a common 15 to 18 inch diameter penstock approximately 13,300 feet in length, (2) one proposed generating unit with an installed capacity of 350 kilowatts, (3) proposed 0.1 mile tail race canal to Samaria Creek, (4) proposed 1000 feet of 12.5 kV transmission lines, and (5) appurtenant facilities. The proposed project would have an average annual generation of 1,200,000 kilowatt-hours, which would be sold to a local utility. l. Locations of Applications: A copy of the application is available for inspection and reproduction at the Commission in the Public Reference Room, located at 888 First Street, NE., Room 2A, Washington DC 20426, or by calling (202) 502-8371. This filing may also be viewed on the Commission's Web site at http://www.ferc.gov using the ``eLibrary'' link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail [email protected]. For TTY, call (202) 502-8659. A copy is also available for inspection and reproduction at the address in item h above. m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission. n. Competing Preliminary Permit: Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36. o. Competing Development Application: Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36. p. Notice of Intent: A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. q. Proposed Scope of Studies Under Permit: A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. r. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under ``e-filing'' link. The Commission strongly encourages electronic filing. s. Filing and Service of Responsive Documents: Any filings must bear in all capital letters the title ``COMMENTS'', ``RECOMMENDATIONS FOR TERMS AND CONDITIONS'', ``PROTEST'', ``COMPETING APPLICATION'', or ``MOTION TO INTERVENE'', as applicable, and the Project Number of the particular application to which the filing refers. Any of the above- named documents must be filed by providing the original and the number of copies [[Page 21012]] provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application. t. Agency Comments: Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Magalie R. Salas, Secretary. [FR Doc. E6-6049 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

usgpo

2024-10-08T14:08:34.389490

FR

FR-2006-04-24/E6-6050

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 21012-21013] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6050] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Application Accepted for Filing and Soliciting Motions To Intervene, Protests, and Comments April 17, 2006. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. Type of Application: Preliminary Permit. b. Project No.: 12662-000. c. Date filed: March 21, 2006. d. Applicant: Renewable Resources, Inc. e. Name of Project: Swift River Mill Project. f. Location: The project would be located on the Pawcatuck River, in Washington County, Rhode Island. The project would not occupy Federal or Tribal lands. The existing dam is owned by the applicant. g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r). h. Applicant Contact: Mr. John R. Lavigne, Renewable Resources, Inc., c/o The H.L. Turner Group, Inc., 27 Locke Road, Concord, NH 03301-5417, (603) 228-1122. i. FERC Contact: Robert Bell, (202) 502-6062. j. Deadline for filing comments, protests, and motions to intervene: 60 days from the issuance date of this notice. The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. Description of Project: The proposed project would consist of: (1) The existing 112-foot-long, 10-foot-high concrete gravity dam, (2) an existing impoundment having a surface area of 36 acres, with a storage capacity 204 acre-feet and normal water surface elevation of 9,800 feet national geographic vertical datum, (3) two existing 10- foot-wide, 40-foot-long concrete flumes, which join to form a 16.5-foot wide, 100-foot-long concrete flume, (4) an existing powerhouse containing two new generating units having a total installed capacity of 339 kilowatts, (5) an existing granite tailrace, (6) a proposed underground transmission line 300 feet long, and (7) appurtenant facilities. The project would have an annual generation of 2.97 gigawatt hours, which would be sold to a local utility. l. Locations of Applications: A copy of the application is available for inspection and reproduction at the Commission in the Public Reference Room, located at 888 First Street, NE., Room 2A, Washington DC 20426, or by calling (202) 502-8371. This filing may also be viewed on the Commission's Web site at http://www.ferc.gov using the ``eLibrary'' link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail [email protected]. For TTY, call (202) 502-8659. A copy is also available for inspection and reproduction at the address in item h. above. m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission. n. Competing Preliminary Permit: Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36. o. Competing Development Application: Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36. p. Notice of Intent: A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. q. Proposed Scope of Studies under Permit: A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. r. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under ``e- [[Page 21013]] filing'' link. The Commission strongly encourages electronic filing. s. Filing and Service of Responsive Documents: Any filings must bear in all capital letters the title ``COMMENTS'', ``COMPETING APPLICATION'', ``RECOMMENDATIONS FOR TERMS AND CONDITIONS'', ``PROTEST'', or ``MOTION TO INTERVENE'', as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application. t. Agency Comments: Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Magalie R. Salas, Secretary. [FR Doc. E6-6050 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

usgpo

2024-10-08T14:08:34.410757

FR

FR-2006-04-24/E6-6034

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Page 21013] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6034] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. PF06-23-000] Gulf South Pipeline Company, LP; Notice of Site Visit for the Proposed Mississippi Expansion Project April 13, 2006. The Gulf South Pipeline Company (Gulf South) is proposing to construct approximately 88 miles of 42-inch-diameter pipeline and a new 39,990 horsepower compression station in Madison Parish, Louisiana, and Warren, Hinds, Copiah and Simpson Counties, Mississippi. On April 25 and 26, 2006, staff from the Office of Energy Projects (OEP) as part of its Pre-Filing Review will visit the proposed pipeline route and potential compression station sites and will attend open house meetings sponsored by the applicant to answer questions about the Pre-Filing Review process. All interested parties are welcome to attend the site visits and open houses. Those wishing to attend the site visits must provide their own transportation. The schedule for the site visits and open houses is as follows: Tuesday, April 25th Site Visit: Meet at 8 a.m. (CST). Eagle Ridge Conference Center Parking Lot, 1500 Raymond Lake Road, Raymond, MS 39154. 601-857-7100. Open House: 5 p.m.-6:30 p.m. (CST). Eagle Ridge Conference Center, Talon Room, 1500 Raymond Lake Road, Raymond, MS 39154. 601-857-7100. Wednesday, April 26th Site Visit: Meet at 8 a.m. (CST). Tallulah Country Club Parking Lot, 762 Old Highway 65 South, Tallulah, LA 71282. 318-574-4173. Open House: 5 p.m.-6:30 p.m. (CST). Tallulah Country Club, 762 Old Highway 65 South, Tallulah, LA 71282. 318-574-4173. These events are posted on the Commission's calendar located on the internet at http://www.ferc.gov/EventCalendar/EventsList.aspx. For additional information regarding these events, please contact the Commission's Office of External Affairs at 202-502-8004. Magalie R. Salas, Secretary. [FR Doc. E6-6034 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

usgpo

2024-10-08T14:08:34.426375

FR

FR-2006-04-24/E6-6037

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 21013-21014] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: E6-6037] ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. AD06-4-000] Resource Reports 11 and 13 Guidance; Notice of Technical Conference April 13, 2006. On Tuesday, May 9, 2006, the staff of the Office of Energy Projects of the Federal Energy Regulatory Commission (FERC or Commission) will convene a technical conference to discuss the engineering and safety information required in applications for liquefied natural gas (LNG) facilities. Filings that are complete expedite staff detailed review to ensure that all areas of the proposed design are safe and reliable. The technical conference will convene at 10 a.m. (EST) at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in Conference Room 3M-02. On December 15, 2005, the Commission issued Draft Guidance for Filing Resource Reports 11 & 13 for LNG Facility Applications to assist applicants by identifying the specific information and level of detail required for filing these resource reports as specified by Title 18 of the Code of Federal Regulations, Sections 380.12 (m) and (o). This document addresses recent initiatives, as well as several requests for specific guidance, including: The level of detail, including a requirement for a hazard design review, necessary for the front-end engineering design submitted to the FERC; Critical energy infrastructure information (CEII) classification; LNG spill containment sizing and design criteria for impoundments, sumps, sub-dikes, troughs or trenches; Design spills to be used in the calculation of thermal and flammable vapor exclusion zones; Waterway suitability assessments required by the U.S. Coast Guard's Navigation and Inspection Circular 05-05; and Compliance with the Energy Policy Act of 2005. The technical conference will allow the public and the engineering community the opportunity to provide comments on the required information for Resource Report 11: Reliability and Safety, and Resource Report 13: Engineering and Design Material for LNG facility applications. In addition, the conference will solicit comments on our Draft Preferred Submittal Format Guidance for better organizing the engineering information in Resource Report 13. This document is available on the Commission Web site at http://www.ferc.gov/docs-filing/elibrary.asp under Docket No. AD06-4 or by accessing the following link: http://elibrary.ferc.gov:0/idmws/file_list.asp?document_id=4394249. Information related to specific projects before the Commission will not be discussed. The conference is open to the public. Pre-registration is required and may be submitted either online at http://www.ferc.gov/whats-new/registration/cryo-conf-form.asp or by faxing a copy of the form (found at the referenced online link) to 202-208-0353. FERC conference and meetings are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to [email protected] or call toll free (866) 20803372 (voice) or 202-502-8659 (TTY), or send a fax to 202-208-2106 with the required accommodations. For information about this conference, please contact Chris Zerby 202-502- [[Page 21014]] 6111, Kareem Monib 202-502-6265, or Ghanshyam Patel 202-502-6431. Magalie R. Salas, Secretary. [FR Doc. E6-6037 Filed 4-21-06; 8:45 am] BILLING CODE 6717-01-P

usgpo

2024-10-08T14:08:34.446760

FR

FR-2006-04-24/06-3808

Federal Register Volume 71 Issue 78 (April 24, 2006)

United States National Archives and Records Administration Office of the Federal Register

[Federal Register Volume 71, Number 78 (Monday, April 24, 2006)] [Notices] [Pages 21014-21026] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 06-3808] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [FRL-8160-7] Recent Posting to the Applicability Determination Index (ADI) Database System of Agency Applicability Determinations, Alternative Monitoring Decisions, and Regulatory Interpretations Pertaining to Standards of Performance for New Stationary Sources, National Emission Standards for Hazardous Air Pollutants, and the Stratospheric Ozone Protection Program AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of availability. ----------------------------------------------------------------------- SUMMARY: This notice announces applicability determinations, alternative monitoring decisions, and regulatory interpretations that EPA has made under the New Source Performance Standards (NSPS); the National Emission Standards for Hazardous Air Pollutants (NESHAP); and the Stratospheric Ozone Protection Program. FOR FURTHER INFORMATION CONTACT: An electronic copy of each complete document posted on the Applicability Determination Index (ADI) database system is available on the Internet through the Office of Enforcement and Compliance Assurance (OECA) Web site at http://www.epa.gov/compliance/monitoring/programs/caa/adi.html. The document may be located by date, author, subpart, or subject search. For questions about the ADI or this notice, contact Maria Malave at EPA by phone at: (202) 564-7027, or by e-mail at: [email protected]. For technical questions about the individual applicability determinations or monitoring decisions, refer to the contact person identified in the individual documents, or in the absence of a contact person, refer to the author of the document. SUPPLEMENTARY INFORMATION: Background The General Provisions to the NSPS in 40 CFR part 60 and the NESHAP in 40 CFR part 61 provide that a source owner or operator may request a determination of whether certain intended actions constitute the commencement of construction, reconstruction, or modification. EPA's written responses to these inquiries are broadly termed applicability determinations. See 40 CFR 60.5 and 61.06. Although part 63 NESHAP and section 111(d) of the Clean Air Act regulations contain no specific regulatory provision that sources may request applicability determinations, EPA does respond to written inquiries regarding applicability for the part 63 and section 111(d) programs. The NSPS and NESHAP also allow sources to seek permission to use monitoring or recordkeeping which are different from the promulgated requirements. See 40 CFR 60.13(i), 61.14(g), 63.8(b)(1), 63.8(f), and 63.10(f). EPA's written responses to these inquiries are broadly termed alternative monitoring decisions. Furthermore, EPA responds to written inquiries about the broad range of NSPS and NESHAP regulatory requirements as they pertain to a whole source category. These inquiries may pertain, for example, to the type of sources to which the regulation applies, or to the testing, monitoring, recordkeeping or reporting requirements contained in the regulation. EPA's written responses to these inquiries are broadly termed regulatory interpretations. EPA currently compiles EPA-issued NSPS and NESHAP applicability determinations, alternative monitoring decisions, and regulatory interpretations, and posts them on the Applicability Determination Index (ADI) on a quarterly basis. In addition, the ADI contains EPA- issued responses to requests pursuant to the stratospheric ozone regulations, contained in 40 CFR part 82. The ADI is an electronic index on the Internet with more than one thousand EPA letters and memoranda pertaining to the applicability, monitoring, recordkeeping, and reporting requirements of the NSPS and NESHAP. The letters and memoranda may be searched by date, office of issuance, subpart, citation, and control number or by string word searches. Today's notice comprises a summary of 95 such documents added to the ADI on February 28, 2006. The subject, author, recipient, date and header of each letter and memorandum are listed in this notice, as well as a brief abstract of the letter or memorandum. Complete copies of these documents may be obtained from the ADI through the OECA Web site at: http://www.epa.gov/compliance/monitoring/programs/caa/adi.html. Summary of Headers and Abstracts The following table identifies the database control number for each document posted on the ADI database system on February 28, 2006; the applicable category; the subpart(s) of 40 CFR part 60, 61, or 63 (as applicable) covered by the document; and the title of the document, which provides a brief description of the subject matter. We have also included an abstract of each document identified with its control number after the table. These abstracts are provided solely to alert the public to possible items of interest and are not intended as substitutes for the full text of the documents. ADI Determinations Uploaded on February 24, 2006 ---------------------------------------------------------------------------------------------------------------- Control Category Subpart Title ---------------------------------------------------------------------------------------------------------------- A050001............................ Asbestos.............. M..................... Demolition of Residential Trailer Homes. M050030............................ MACT.................. A, EEE................ Stack Test Waiver for a Portland Cement Plant Kiln. M050036............................ MACT.................. G..................... Alternative Monitoring of Orthoxylene Unit. M050037............................ MACT.................. G..................... Waiver of Additional Performance Testing. M050038............................ MACT.................. U..................... Alternative Reporting Period. M050039............................ MACT.................. A..................... Waiver of Flare Performance Testing. M050040............................ MACT.................. CC, G................. Alternative Reporting Period. M050041............................ MACT.................. CC.................... Alternative Reporting Period. M050042............................ MACT.................. S..................... Alternative Test Method for Pulp and Paper Mill. M050043............................ MACT.................. S, VVV................ Cluster Rule Compliance Plan. M050044............................ MACT.................. PPP, FFFF............. Primary Product Determination for Production Vessels. M050045............................ MACT.................. S..................... Cluster Rule Compliance Plan. M050046............................ MACT.................. KK, QQQQ.............. Finishing of Architectural Elements. [[Page 21015]] M050047............................ MACT.................. Hon R................. C-12 Chemical Manufacturing Process Units. Z050007............................ NESHAP................ FF, V................. Alternative Monitoring of Pressure/Vacuum Relief Valves. 0500048............................ NSPS.................. D..................... Alternative Opacity Monitoring. 0500060............................ NSPS.................. Db.................... Alternative Monitoring of Fluidized Catalytic Cracking Unit. 0500061............................ NSPS.................. GG.................... Alternative Monitoring of Gas Turbines. 0500062............................ NSPS.................. Db.................... Compliance Monitoring Plan for Gas-Fired Boiler. 0500063............................ NSPS.................. J, Dc................. Alternative Monitoring of Gasoline Loading Rack. 0500064............................ NSPS.................. Dc.................... Alternative Recordkeeping of Fuel Usage. 0500065............................ NSPS.................. Da.................... Alternative Monitoring of Duct Burners. 0500066............................ NSPS.................. NNN................... Alternative Monitoring of Catalytic Incinerators. 0500067............................ NSPS.................. J..................... Alternative Monitoring of Gasoline Loading Rack. 0500068............................ NSPS.................. J..................... Alternative Monitoring of Platformer Lock Hopper. 0500069............................ NSPS.................. J..................... Alternative Monitoring of Vacuum Charge Heater. 0500070............................ NSPS.................. J..................... Alternative Monitoring of Marine Dock Thermal Oxidizer. 0500071............................ NSPS.................. Dc.................... Alternative Recordkeeping of Fuel Usage. 0500072............................ NSPS.................. NNN................... Alternative Monitoring of Distillation Units. 0500073............................ NSPS.................. J..................... Alternative Monitoring of Fluidized Catalytic Cracking Unit. 0500074............................ NSPS.................. J..................... Alternative Monitoring of Refinery Unit. 0500075............................ NSPS.................. GG.................... Alternative Monitoring of New Replacement Turbine. 0500076............................ NSPS.................. Db, GG, Dc............ Custom Fuel Monitoring Schedule. 0500077............................ NSPS.................. UUU................... Kyanite Processing. 0500078............................ NSPS.................. Db, GG................ Alternative Monitoring of Gas Turbines. 0500079............................ NSPS.................. GG, Db................ Custom Fuel Monitoring Schedule. 0500080............................ NSPS.................. GG, Db................ Alternative Monitoring of Gas Turbines. 0500081............................ NSPS.................. Da, GG................ Alternative Monitoring of Gas Turbines. 0500082............................ NSPS.................. Dc, GG................ Alternative Monitoring of Gas Turbines. 0500083............................ NSPS.................. Db.................... Alternative Opacity Monitoring. 0500084............................ NSPS.................. UUU, WWW.............. Alternative Opacity Monitoring. 0500085............................ NSPS.................. Da.................... Stack Testing Waiver. 0500086............................ NSPS.................. WWW................... Tier 2 Sampling. 0500087............................ NSPS.................. WWW................... Alternative Monitoring Proposals for Landfill. 0500088............................ NSPS.................. CC.................... Alternative Opacity Monitoring. 0500089............................ NSPS.................. RRR, NNN.............. Alternative Monitoring of Distillation Operations. 0500090............................ NSPS.................. GG.................... Alternative Monitoring of Combustion Turbines. 0500091............................ NSPS.................. Dc.................... Alternative Recordkeeping of Fuel Usage. 0500092............................ NSPS.................. LL.................... Waiver of Visible Emission Test Requirements. 0500093............................ NSPS.................. D..................... Alternative Opacity, SO2 , and NOX Monitoring. 0500094............................ NSPS.................. Db.................... Alternative Monitoring Plan Modification Request. 0500095............................ NSPS.................. WWW................... Passive Flares and Waiver of Testing Requirements. 0500096............................ NSPS.................. GG.................... Alternative Monitoring Plan for Gas Turbines. 0500097............................ NSPS.................. WWW................... Temporary Disconnection of Gas Collection Wells. 0500098............................ NSPS.................. Cc.................... Tier 2 Testing Deadline. 0500099............................ NSPS.................. Y, OOO................ Initial Opacity Performance Testing. 0500100............................ NSPS.................. Dc.................... Opacity Monitor Certification. 0500101............................ NSPS.................. III, NNN.............. Waiver of Performance Test of Flare. 0500102............................ NSPS.................. WWW................... Waiver of Installation of Gas Collection Wells. 0500103............................ NSPS.................. Db.................... Initial Performance Test Waiver and Recordkeeping Waiver. 0500104............................ NSPS.................. Dc.................... Initial Opacity Performance Testing. 0500105............................ NSPS.................. J..................... Alternative Monitoring of Refinery Fuel Gas Streams. 0500106............................ NSPS.................. D..................... Alternative Span Value. 0500107............................ NSPS.................. OOO................... Waiver of Initial Performance Test for Baghouses. 0500108............................ NSPS.................. Db.................... Alternative Opacity Monitoring. 0500109............................ NSPS.................. H, T, U, V............ Use of English Units for Monitoring and Recordkeeping. 0500110............................ NSPS.................. XX.................... VRU Bypass During Diesel Loading. 0500111............................ NSPS.................. UU.................... Alternative Opacity Monitoring and Performance Testing. 0500112............................ NSPS.................. A, D, Db, Dc, Kb, DDD, Alternative Monitoring of III, NNN, RRR. Startups, Shutdowns, Malfunctions. 0500113............................ NSPS.................. VV, Y, OOO............ Alternative Monitoring for Leak Detection. 0500114............................ NSPS.................. OOO, Y, Dc............ Alternative Monitoring for Visible Emissions. 0500115............................ NSPS.................. WWW, III, NNN......... Alternative Monitoring of Surface Methane. 0500116............................ NSPS.................. WWW................... Landfill Testing and Emission Rate Calculation Issues. 0500117............................ NSPS.................. WWW................... Alternative Monitoring Plan for Landfill Gas. 0500118............................ NSPS.................. CC.................... Alternative Opacity Monitoring. 0500119............................ NSPS.................. XX, J................. Re-Test Requirements After Adding Equipment. 0500120............................ NSPS.................. TT.................... Alternative Test Method. 0500121............................ NSPS.................. VV.................... Alternative Monitoring Plan for Leak Detection. 0500122............................ NSPS.................. Db, Dc................ Boiler Derate Proposal. 0500123............................ NSPS.................. UUU................... Alternative Monitoring Plan for Fluidized Bed Dryer. 0500124............................ NSPS.................. GG.................... Modification of Initial Performance Testing. 0500125............................ NSPS.................. J, A, I............... Performance Test Extension Request. 0500126............................ NSPS.................. J..................... Alternative Monitoring Plan for CEM Span Setting. [[Page 21016]] 0500127............................ NSPS.................. J..................... Alternative Monitoring Plan for Refinery Unit. 0500128............................ NSPS.................. J..................... Alternative Monitoring Plan for Refinery Unit. 0500129............................ NSPS.................. J..................... Alternative Monitoring Plan for Refinery Combustion Unit. 0500130............................ NSPS.................. J..................... Alternative Monitoring Plan for Refinery Unit. 0500131............................ NSPS.................. J..................... Alternative Monitoring Plan for Vent Gas Stream. 0500132............................ NSPS.................. NNN, RRR.............. Alternative Opacity Monitoring. 0500133............................ NSPS.................. NNN, RRR.............. Alternative Monitoring Plan for Distillation Units. 0500134............................ NSPS.................. B..................... Alternative Performance Specification Procedure. 0500135............................ NSPS.................. Db.................... Alternative Monitoring Plan for Cogeneration Unit. 0500136............................ NSPS.................. NNN................... SOCMI Distillation Operations. 0500137............................ NSPS.................. J..................... Fuel Gas Combustion Devices and Process Gas Exemption. 0500138............................ NSPS.................. J..................... Fuel Gases and Fuel Gas Combustion Devices. ---------------------------------------------------------------------------------------------------------------- Abstracts Abstract for [A050001] Q1: Are trailer homes with different owners located in the state of Delaware that are recycled using two different processes through the Delaware Solid Waste Authority subject to 40 CFR part 61, subpart M? A1: No. 40 CFR part 61, subpart M, the asbestos NESHAP regulation, does not apply to demolition of single residential trailer homes because they are classified as single dwelling units and ownership remains with the trailer owner, not the state. A single dwelling unit that is being demolished is exempt from the NESHAP regulation throughout the entire recycling process. However, when two or more residential homes are located at the same demolition site and are under control of the same owner or operator, then the trailer homes become a residential installation subject to the NESHAP regulation. Q2: Would 40 CFR part 61, subpart M, apply if the residential trailer home were purchased by a commercial entity rather than being sent to the Delaware Solid Waste Authority? A2: No. A residential trailer home and its recycling process are exempt from the asbestos NESHAP regulation if at the time of demolition, it can be classified as single dwelling unit and does not meet the definition of a residential installation in 40 CFR 61.141. Q3: Given the inapplicability of 40 CFR part 61, subpart M, what might the State of Delaware do to minimize public exposure to asbestos from the demolition of residential trailer homes? A3: EPA suggests that the State of Delaware encourage inspection and removal of asbestos-containing material at the Delaware Solid Waste Authority compaction site. The state might also consider the addition of a permit condition in the Delaware landfills operating permits that would prohibit landfills from accepting asbestos-containing material as landfill cover. Abstract for [0500060] Q: Does EPA approve a request to discontinue calibrating a carbon monoxide continuous emission monitor (CEM) with a 1,000-ppmv span gas for a fluid catalytic cracking unit, under 40 CFR part 60, subpart Db, at Flint Hill Resources Pine Bend petroleum refinery in Rosemount, Minnesota? A: Yes. EPA approves this request because, based on information submitted to EPA, Flint Hills Resources meets the criteria for the exemption set forth at 40 CFR 60.105(a)(2)(ii). However, a State permit requires the facility to calibrate its carbon monoxide continuous emission monitor with a 100 ppmv span gas. Abstract for [0500061] Q1: Does EPA waive the multi-load testing requirement, under 40 CFR part 60, subpart GG, for Tristate's Pyramid Generating Station near Lordsburg, New Mexico? A1: Yes. EPA waives the multi-load testing requirement under NSPS subpart GG because the facility has a nitrogen oxides continuous emissions monitor (NOX CEM). Q2: Does EPA approve the use of monitoring conducted in accordance with Part 75 in lieu of certain monitoring requirements in 40 CFR part 60, subpart GG, at Tristate's Pyramid Generating Station near Lordsburg, New Mexico? A2: Yes. EPA approves the use of certain monitoring of part 75 in lieu of certain monitoring requirements of NSPS subpart GG. Abstract for [0500062] Q: Does EPA approve a compliance monitoring plan, under 40 CFR part 60, subpart Db, for a 185-mmBTU/hr natural gas-fired boiler at Flint Hills Resources (FHR) petroleum refinery in Rosemount, Minnesota? A: Yes. On April 12, 2000, the company supplemented its request in accordance with EPA's initial response. The plan that Koch Fuels (FHR's former name) submitted included all of the information required by 40 CFR 60.49b(c)(1), (2) and (3). Based upon a review of the information that the company submitted, EPA approves the proposed compliance monitoring plan under NSPS subpart Db. Abstract for [Z050007] Q: Does EPA approve an alternative monitoring plan, under 40 CFR part 61, subparts V and FF, for pressure/vacuum relief valves in the wastewater treatment plant tanks and oil-water separator located at Flint Hills Resources (FHR) petroleum refinery in Rosemount, Minnesota? A: Yes. EPA concludes that the pressure/vacuum relief valves function as both pressure relief devices and dilution air openings under NESHAP subparts V and FF. EPA did not promulgate a definition of ``dilution air opening'' in NESHAP subpart FF. NESHAP subpart V infers that a pressure relief device is designed to release pressure but is not designed to function as a dilution air opening. Since the pressure/ vacuum relief valves relieve excess pressure in the closed vent system and allow dilution air to enter the closed vent system, the pressure/ vacuum relief valves are both pressure relief devices and dilution air openings. EPA recognizes that the requirements of 40 CFR 61.343(a)(1)(i)(B) and (C) do not account for this dichotomy, and thus approves FHR's request for an alternative monitoring plan to resolve the ambiguity. Abstract for [0500063] Q: Does EPA approve an alternative monitoring plan, under 40 CFR part 60, subpart J, to address a new refinery fuel gas that Flint Hills Resources (FHR) loads at a gasoline loading rack at its Pine Bend Refinery in Rosemount, Minnesota? [[Page 21017]] A: Yes. EPA finds FHR has demonstrated that this refinery fuel gas meets the criteria in EPA's August 14, 1987 guidance for refinery fuel gas stream alternative monitoring plans, and thus it approves the alternative monitoring plan under NSPS subpart J. Abstract for [0500064] Q: Does EPA approve an alternative fuel usage recordkeeping method, under 40 CFR part 60, subpart Dc, for two heaters at Devon Energy's Bridgeport Gas Processing Plant near Bridgeport, Texas? A: Yes. EPA approves the changes in the fuel usage recordkeeping frequency for NSPS subpart Dc boilers that are fired with only natural gas and/or low sulfur oil. Abstract for [M050036] Q: Does EPA approve an alternative control method, under 40 CFR part 63, subpart G, using dual carbon canisters to reduce HAP emissions at the Chalmette Refinery in Chalmette, Louisiana? A: Yes. EPA approves the alternative method under MACT subpart G, conditioned on Chalmette's daily monitoring of the HAPs concentration after the primary canister until breakthrough has occurred three times. Abstract for [0500065] Q: Does EPA waive the monitoring requirement, under 40 CFR part 60, subpart Da, to use a sulfur dioxide continuous emission monitor (SO2 CEM) for duct burners located at Calpine's Channel Energy Center facility in Houston, Texas? A: No. EPA does not waive the requirement under NSPS subpart Da. However, EPA will consider the approval of an alternative monitoring plan in lieu of an SO2 CEM. Abstract for [0500066] Q: Does EPA approve an alternative monitoring plan, under 40 CFR part 60, subpart NNN, for the catalytic incinerator at BASF's Freeport, Texas facility, which operates at varying flowrates and must add hydrocarbons to the stream to generate the required delta T established by the performance test? A: Yes. EPA approves an alternative monitoring plan under NSPS subpart NNN for BASF's R-170 Catalytic Incinerator provided that: (1) The minimum outlet temperature will be 550 degrees C; (2) the minimum delta T across the bed will be 287 degrees C; (3) the minimum organic loading to the bed will be 89,380 lb/hr; and (4) the facility establishes alarms at a 15 degrees C differential to allow time for corrective action. In addition, BASF will keep records of organic flow rate to R-170 in lb/hr. Any hourly flow rates that are below the approved minimum will be considered a violation of NSPS subpart NNN and must be reported as excess emissions. Abstract for [M050037] Q: Will EPA waive, under 40 CFR part 63, subpart G, additional performance testing if the scrubber/absorption system organic absorption medium is changed from utility water to recycle process wastewater at a BP Chemicals Green Lake facility in Port Lavaca, Texas? A: Yes. EPA will waive additional testing under MACT subpart G because the change in medium at the scrubber/absorption system would lead to only a slight increase in emissions and the total emissions remain below the permitted emissions limit of 0.37 lb/hr. Abstract for [0500067] Q: Does EPA approve an alternative monitoring plan (AMP), under 40 CFR part 60, subpart J, for a flare used by Flint Hills Resources (FHR) during periods of maintenance or malfunction of a vapor recovery unit at a gasoline loading rack at its Pine Bend Refinery in Rosemount, Minnesota? A: Yes. EPA finds that FHR has demonstrated that this refinery fuel gas meets the criteria in EPA's guidance, ``Alternative Monitoring Plan for NSPS Subpart J Refinery Fuel Gas'' for refinery fuel gas stream alternative monitoring plans (see AMP attached to ADI Control Number 0500138) and thus it approves the alternative monitoring plan under NSPS subpart J. Abstract for [0500068] Q: Does EPA approve an alternative monitoring plan (AMP), under 40 CFR part 60, subpart J, for the platformer lock hopper and switch valve vent refinery fuel gas stream at Flint Hills Resources (FHR) petroleum refinery in Rosemount, Minnesota? A: Yes. EPA finds that FHR has demonstrated that this refinery fuel gas meets the criteria in EPA's guidance, ``Alternative Monitoring Plan for NSPS Subpart J Refinery Fuel Gas'' for refinery fuel gas stream alternative monitoring plans (see AMP attached to ADI Control No. 0500138), and thus it approves the alternative monitoring plan under NSPS subpart J. Abstract for [0500069] Q: Does EPA approve an alternative monitoring plan, under 40 CFR part 60, subpart J, in lieu of a hydrogen disulfide continuous emission monitor (H2S CEM) for the disulfide separator off-gas in Atofina's facility in Port Arthur, Texas? A: Yes. EPA approves the alternative monitoring plan under NSPS subpart J based upon the data submitted, and provided that the proposed alternative monitoring plan correctly applies the stipulated guidance in EPA's letters to Koch Fuels on December 2, 1999 and February 13, 2001 (see ADI Control Numbers 0500137 and 0100037). Abstract for [0500070] Q1: Does EPA approve an alternative monitoring plan, under 40 CFR part 60, subpart J, in lieu of a hydrogen disulfide continuous emission monitor (H2S CEM) for the dock thermal oxidizer vent gases in Atofina's facility in Port Arthur, Texas? A1: Yes. EPA approves the alternative monitoring plan under NSPS subpart J based upon the data submitted, and provided that the proposed alternative monitoring plan correctly applies the stipulated guidance in EPA's letters to Koch Fuels on December 2, 1999 and February 13, 2001 (see ADI Control Numbers 0500137 and 0100037). Q2: Does EPA approve alternative recordkeeping requirements for boilers, under 40 CFR part 60, subpart Dc, at the Frito-Lay facility in Mission, Texas? A2: Yes. EPA approves the alternative recordkeeping requirements under subpart Dc based upon the information submitted by the facility. Abstract for [M050038] Q: Does EPA approve a request to align the periodic reporting requirements of non-leak detection and reduction (LDAR) and LDAR to a single semiannual report, under 40 CFR part 63, subpart U, for the hypalon elastomer unit at the DuPont Dow facility in Beaumont, Texas? A: Yes. EPA approves the request to align the periodic reporting requirements of non-LDAR and LDAR to a single semiannual report under MACT subpart U as long as the reports are submitted in such a manner that there are no missing days of reporting. Abstract for [M050039] Q: Does EPA waive a performance test requirement for vent streams that contain hydrogen cyanide (HCN) and allow the use of an alternative method of demonstrating compliance, under 40 CFR part 63, subpart A, at DuPont Chemical Solutions Enterprise's facility in Beaumont, Texas? A: Yes. EPA grants the waiver of performance testing under MACT subpart A for flow measurement and heat content because the facility has [[Page 21018]] demonstrated compliance using alternate means. Abstract for [0500071] Q: Does EPA approve alternative recordkeeping requirements, under 40 CFR part 60, subpart Dc, for natural gas burning boilers at the Frito-Lay facility in Mission, Texas? A: Yes. EPA approves the alternative recordkeeping requirements under subpart Dc based upon the condition that it is not necessary to keep daily fuel usage records for units fired only with natural gas since the emission standards in subpart Dc are not applicable to these units. Abstract for [0500072] Q: Will EPA approve, under 40 CFR part 60, subpart NNN, an alternative plan to monitor the total flow to the combustion device instead of monitoring the flow of each vent stream from several distillation units to the combustion device at ExxonMobil's Baytown Chemical Plant in Baytown, Texas? A: Yes. EPA approves this alternative monitoring request under NSPS subpart NNN with additional conditions to ensure which combustion devices are associated with which vent gas streams. Abstract for [0500073] Q: Does EPA approve an alternative monitoring plan for a refinery generated fuel gas stream, under 40 CFR part 60, subpart J, at Motiva Enterprises' Convent Refinery in Convent, Louisiana? A: Yes. EPA approves an alternative monitoring plan under NSPS subpart J, provided the facility follows the stipulated guidance in EPA's letters to Koch Fuels on December 2, 1999 and February 13, 2001 (see ADI Control Numbers 0500137 and 0100037). Abstract for [M050040] Q: Does EPA align the 40 CFR part 63, subparts G and CC reporting periods for Motiva Enterprises' facility in Norco, Louisiana? A: Yes. EPA aligns the reporting periods under MACT subparts G and CC, provided that the facility submits a shortened report such that no days of recordkeeping and reporting are missed. Abstract for [0500074] Q: Does EPA approve an alternative monitoring plan for the regenerative catalytic cracking unit (RCCU), under 40 CFR part 60, subpart J, at Motiva Enterprises' facility in Norco, Louisiana? A: Yes. EPA approves an alternative monitoring plan under NSPS subpart J, provided that the monitored parameters and ranges at the facility have supporting data. Abstract for [M050041] Q: Does EPA allow aligning the reporting period to a semi-annual calendar year, under 40 CFR part 63, subpart CC, for the Shell Norco Chemical Plant in Norco, Louisiana? A: Yes. EPA allows the aligning of the reporting period under MACT subpart CC, provided that the facility submits a shortened report such that no days of recordkeeping and reporting are missed. Abstract for [M050042] Q: Does EPA approve the use of National Council for Air and Stream (NCASI) hazardous air pollutants (HAPS) Test Method 99.01, under 40 CFR part 63, subpart S, to analyze condensate samples collected at Appleton Papers' Spring Mill in Roaring Spring Borough, Pennsylvania? A: Yes. EPA allows the alternative method under MACT subpart S, provided that the appropriate correction factors are used. Abstract for [0500075] Q1: Does EPA approve the continuation of the current custom fuel monitoring plan for the new replacement turbine, under 40 CFR part 60, subpart GG, at East Tennessee Natural Gas Company's Compressor Station 3313 in Rural Retreat, Virginia? A1: Yes. EPA approves this request under NSPS subpart GG because it understands that there will be no change in fuel quality since there is no change in fuel source. Q2: Does EPA approve a sampling location, under 40 CFR part 60, subpart GG, where the system's three major lines connect? A2: Yes. Because the ownership of East Tennessee Natural Gas Company was transferred from El Paso Energy Corporation (EPE) to a subsidiary of Duke Energy Gas Transmission, EPA approves a new sampling location at Topside Junction Metering and Control Station in Knoxville County, where the system's three major lines connect. Abstract for [M050043] Q: Does EPA approve alternative monitoring parameters and parameter values for ``closed'' biological treatment systems, under 40 CFR part 63, subpart S, at the Smurfit (formerly Stone Container Corporation) pulp and paper mill in Hopewell, Virginia? A: Yes. EPA approves the request because the facility has adequately demonstrated it meets the requirements of MACT subpart S through both continuous monitoring of the proposed four parameters and continuous monitoring to ensure that UNOX oxygen purity is maintained at 96 percent maximum. Abstract for [M050044] Q1: Does EPA approve the primary product determination for specific production vessels and precompliance report for pilot vessels, under 40 CFR part 63, subpart PPP, for the CRODA Manufacturing facility in Mill Hall, Pennsylvania? A1: Yes. EPA approves the request under MACT subpart PPP because it accepts CRODA's conclusion that specific production vessels that do not manufacture a polyether polyol as the primary product are not polyether polyol manufacturing units. Q2: Does EPA agree that products manufactured with epoxides do not meet the definition of a polyether polyol in 40 CFR part 63, subpart PPP? A2: Yes. EPA agrees that products that do not meet the definition of polyether polyol in MACT subpart PPP are not subject to the requirements of that subpart. Abstract for [M050045] Q: Does EPA approve the use of alternative monitoring parameters and parameter values to demonstrate compliance with 40 CFR part 63, subpart S for ``closed'' biological treatment systems at the St. Laurent Paperboard facility in West Point, Virginia? A: Yes. EPA approves the request because the facility has adequately demonstrated that the alternative monitoring parameters meet the requirements of MACT subpart S. Abstract for [0500076] Q: Does EPA approve a custom fuel monitoring schedule, under 40 CFR part 60, subpart GG, for Millennium Inorganic Chemicals' Hawkins Point plant in Baltimore, Maryland? A: Yes. EPA approves this request in accordance with its August 14, 1987 custom fuel monitoring schedule memorandum, and provided that pipeline quality natural gas is the only fuel being burned. Abstract for [0500077] Q: Does 40 CFR part 60, subpart UUU, apply to rotary calciners that are used in the production of mullite with kyanite as the raw material at Kyanite Mining Corporation (KMC) facilities? A: No. NSPS subpart UUU applies to calciners and dryers at ``mineral processing plants,'' i.e., a facility that processes or produces one or more of [[Page 21019]] the seventeen specifically named minerals listed in 40 CFR 60.731, their concentrates, or mixtures which contain greater than 50 percent of any of these listed minerals. EPA understands that silica is formed as a by-product during the kyanite calcining process at KMC in quantities that do not constitute the majority (greater than 50 percent) of any of the minerals processed or produced at KMC. Abstract for [M050046] Q: Is a facility which primarily applies finishing to architectural wood molding materials subject to the requirements of 40 CFR part 63, subpart KK? A: No. While EPA believes that the definitions in 40 CFR 63.822 are intended to be broadly applied and inclusive, we have determined that rotogravure printing on wood molding was not intended to be regulated under this rule. The facility does not produce saleable paper products and does use a flexographic press in its finishing operations. It therefore does not qualify as ``publication rotogravure printing'' as that term is defined in 40 CFR 63.822. However, EPA has determined that the molding finishing operations at the facility would be regulated under 40 CFR 43 Subpart QQQQ, the Wood Building Products MACT, if the molding products ``finished'' at the facility are not included within the category of surface coating (or other operations specifically excluded under 40 CFR 63.4681(c)(1)-(5)) and are more than 50 percent by weight wood. Abstract for [0500078] Q: Does EPA approve an alternative monitoring plan, under 40 CFR part 60, subpart GG, for the Liberty Electric Power facility in Eddystone Borough, Pennsylvania? A: Yes. EPA approves this alternative monitoring plan request under NSPS subpart GG, consistent with previous determinations that provide for the use of continuous emissions monitoring systems (CEMS) equipment to continuously monitor compliance with the standard for nitrogen oxides. Abstract for [0500079] Q: Does EPA approve a custom fuel monitoring schedule, under 40 CFR part 60, subpart GG, for the Liberty Electric Power facility in Eddystone Borough, Pennsylvania? A: Yes. EPA approves this custom fuel monitoring schedule under NSPS subpart GG in accordance with its August 14, 1987 custom fuel monitoring schedule memorandum, and provided that natural gas is the only fuel fired in the gas turbine. Abstract for [0500080] Q: Does EPA approve an alternative test method request for performance testing of (nitrogen oxides) NOX emission limitations for two gas turbine/duct burner combined cycle units, under 40 CFR part 60, subpart GG, at the Liberty Electric Power facility in Eddystone Borough, Pennsylvania? A: Yes. EPA approves this request under NSPS subpart GG based on a review by the Emission, Monitoring, and Analysis Division (EMAD) of the Office on Air Quality, Planning and Standards, and subject to the conditions specified in the EMAD memorandum (C304-02) dated April 5, 2002. Abstract for [0500081] Q1: Does EPA approve a custom fuel monitoring schedule, under 40 CFR part 60, subpart GG, for the Tenaska Virginia Generating Station in Fluvanna County, Virginia? A1: Yes. EPA approves this custom fuel monitoring schedule under NSPS subpart GG in accordance with its August 14, 1987 custom fuel monitoring schedule memorandum, and provided that pipeline quality natural gas is the only fuel being burned (see ADI Control Number NS33). Q2: Does EPA approve an alternative monitoring plan, under 40 CFR part 60, subpart GG, that provides for the use of CEMS equipment to continuously monitor compliance with the standards for nitrogen oxides for the Tenaska Virginia Generating Station in Fluvanna County, Virginia? A2: Yes. EPA approves the alternative monitoring plan request under NSPS subpart GG, based upon its consistency with previous determinations made by the Agency and conditions necessitating specific additional requirements for recordkeeping and monitoring. Abstract for [0500082] Q: Does EPA approve a custom fuel monitoring schedule, under 40 CFR part 60 subpart GG, for Energy System North East's Cogeneration Plant in North East, Pennsylvania? A: Yes. EPA approves this custom fuel monitoring schedule under NSPS subpart GG in accordance with its August 14, 1987 custom fuel monitoring schedule memorandum, and provided that pipeline quality natural gas is the only fuel being burned. Abstract for [0500083] Q: Does EPA waive the opacity monitoring requirement in 40 CFR part 60, subpart Db for a wood-fired boiler at the Homanit USA plant in Montgomery County, North Carolina? A: No. EPA finds that neither NSPS subpart Db nor the NSPS general provisions in subpart A provide the authority to completely waive the applicable opacity monitoring requirement of NSPS subpart Db. However, based upon the low probability that there will be any opacity in the regenerative thermal oxidizer stack downstream of the boiler, EPA would be willing to consider an opacity monitoring alternative. Abstract for [0500084] Q: Does EPA approve use of an alternative path length correction factor, under 40 CFR part 60, subpart UUU, based on width rather than equivalent diameter for the continuous opacity monitoring system on three rectangular exhaust stacks at the 3M facility in Moncure, North Carolina? A: Yes. EPA approves this request. EPA finds the alternative path length correction factor is acceptable under NSPS subpart UUU because of the high bias in the opacity data created by using equivalent diameter. Abstract for [0500085] Q: Does EPA waive the 40 CFR part 60, subpart Da requirement to conduct a stack test in order to determine compliance with the applicable sulfur dioxide limit for a duct burner at Cogentrix Energy's Caledonia Power Station? A: Yes. EPA waives the NSPS subpart Da requirement based upon the margin of compliance, provided that the unit is fired with only pipeline quality natural gas. Abstract for [0500086] Q: Does EPA allow collection of Tier 2 samples from the active gas collection systems, under 40 CFR part 60, subpart WWW, at the Prairie Bluff Landfill in Chickasaw County, Mississippi, and the Little Dixie Landfill in Madison County, Mississippi? A: Yes. Based upon NSPS subpart WWW revisions promulgated on October 17, 2000, EPA finds the proposed Tier 2 sampling sites to be acceptable, provided that they are located prior to any gas moving or condensate removal equipment. In addition, at least three samples must be collected from the proposed sampling site at each of the landfills in question. Abstract for [0500087] Q1: Does EPA approve the proposed alternative oxygen concentration limit for 16 wells, under 40 CFR part 60, subpart WWW, at the Deans Bridge [[Page 21020]] Road Landfill operated by the Augusta, Georgia Public Works and Engineering Department? A1: Yes. EPA approves the proposed alternative concentration limit under NSPS subpart WWW because the temperature monitoring data for the wells in question indicate that oxygen levels greater than five percent have not poisoned methane producing bacteria. Q2: Does EPA waive the requirement under 40 CFR part 60, subpart WWW to conduct methane surface concentration monitoring in a closed 52- acre section of the landfill? A2: No. Because NSPS subpart WWW requires that methane surface concentration monitoring in closed areas be conducted at least annually, EPA concludes that the requirement to conduct this monitoring cannot be waived. However, the monitoring frequency can be reduced from a quarterly to an annual basis if none of the methane concentration readings in the closed section of the landfill were 500 parts per million or more during the June 2003 monitoring period. Abstract for [0500088] Q: Does EPA approve an opacity monitoring alternative for two glass melting furnaces, under 40 CFR part 60, subpart CC, at the Anchor Glass Company's Warner Robbins, Georgia plant? A: No. EPA does not approve this request under NSPS subpart CC. Based upon the results of testing conducted on both furnaces, there does not appear to be a consistent relationship between particulate emission rates and the operating parameter (bridgewall temperature) that Anchor Glass proposed to monitor in lieu of installing, certifying, and operating a continuous emission monitoring system. Abstract for [0500089] Q: Does EPA find that the 40 CFR part 60, subpart RRR monitoring procedures are an acceptable alternative to the 40 CFR part 60, subpart NNN requirements for volatile organic compound (VOC) excess emission monitoring at the distillation operation in Celanese Acetate's plant in Rock Hill, South Carolina? A: Yes. EPA finds that the NSPS subpart RRR monitoring procedures are an acceptable alternative to the monitoring procedures required under NSPS subpart NNN in this case. The NSPS subpart RRR requirement to monitor diversions from the control device accomplishes the same end as the NSPS subpart NNN requirement to monitor the flow to the control device. In addition, based upon information in the preamble to the final rule promulgating NSPS subpart RRR, monitoring the combustion temperature for boilers and process heaters, although required under NSPS subpart NNN, is not necessary when a VOC vent stream is introduced with the primary fuel for the boiler or heater. Abstract for [0500090] Q: Does EPA approve the use of Gas Producers Association (GPA) Method 2265, under 40 CFR part 60, subpart GG, to measure the sulfur content of natural gas burned in turbines at the Clarksdale Public Utilities Crossroads Power Plant? A: Yes. EPA approves this request to use GPA Method 2265 for monitoring natural gas sulfur content under NSPS subpart GG because it is an acceptable alternative similar to American Society for Testing Materials (ASTM) methods for measuring sulfur content and consistent with several other past determinations. Abstract for [0500091] Q: Does EPA require requests for approval of an alternative fuel usage recordkeeping schedule to be submitted to EPA for review, under 40 CFR part 60, subpart Dc, especially routine requests for natural gas and distillate oil-fired boilers? A: No. Requests of this type do not have to be submitted exclusively to EPA for review. Because of the routine nature of such requests, review on a case-by-case basis at the Regional level slows down the approval without providing any environmental benefit. The low fuel emissions from natural gas and distillate oil-fired boilers means that monthly fuel usage recordkeeping frequencies are typically appropriate to verify these sources' compliance. Additionally, proposals to apportion total fuel usage between multiple units with a common fuel flow meter do not have to be submitted to EPA for review if the apportionment approach is at least as accurate as one that EPA approved for several plants operated by Tyson Foods in Region 5 in a determination dated May 1, 2001 (ADI control number 010005), which was attached to EPA's response. Abstract for [0500092] Q: Does EPA waive the requirement, under 40 CFR part 60, subpart LL, to perform visible emissions tests on several affected facilities located inside a building at the Treibacher Schleifmittal grit plant in Andersonville, Georgia? A: Yes. EPA waives the NSPS subpart LL requirement to conduct separate visible emission tests on each of the fugitive emission sources inside the facility because the results of EPA Method 22 observations conducted on the exterior of the building provide adequate assurance of compliance for the facilities located inside. Abstract for [0500093] Q: Does EPA approve the opacity, sulfur dioxide (SO2), and nitrogen oxides (NOX) alternative monitoring proposals, under 40 CFR part 60, subpart D, for the Number 2 Bark Boiler at Riverwood International's kraft pulp mill in Macon, Georgia? A: Yes. EPA approves the alternative monitoring proposals concerning opacity, sulfur dioxide, and nitrogen oxides under NSPS subpart D. EPA finds monitoring of the scrubber liquor flow rate and scrubber pressure drop to be an acceptable alternative to using continuous opacity monitors (COMS). Additionally, monitoring the pH of the scrubber liquor when coal is fired is an acceptable alternative to an SO2 CEMS. Furthermore, performing annual boiler tune-ups and conducting annual NOX performance tests is reasonable assurance of compliance with the applicable NOX emission limits in subpart D in lieu of a NOX CEMS. Abstract for [0500094] Q: Does EPA approve a request to modify the current opacity monitoring alternative, under 40 CFR part 60, subpart Db, for a boiler at Georgia Pacific's plywood plant in Monticello, Georgia, by deleting one of the three parameters currently monitored as an indicator of scrubber performance? A: Yes. EPA approves the request under NSPS subpart Db to drop the water supply pressure monitoring requirement. Based on facts submitted to EPA, monitoring both water flow rate and supply pressure at this plant is unnecessary. In addition, several other NSPS subparts, including OOO and UUU, require only pressure drop and water flow rate monitoring. Abstract for [0500095] Q1: Does EPA approve a proposal to use passive flares on a temporary basis (not to exceed 18 months), under 40 CFR part 60, subpart WWW, at Waste Management's Live Oak Landfill in DeKalb County, Georgia? A1: Yes. EPA approves the proposed flares under NSPS subpart WWW, provided that they are used only in areas where liners have been installed on the sides and bottom of the landfill in accordance with 40 CFR 258.40. This determination is based upon the design of the proposed flares, each of which must include a pilot flame, [[Page 21021]] thermocouple, a thermocouple to monitor the temperature at the flare tip, and a data logger to record the thermocouple data. Q2: Does EPA waive the 40 CFR part 60, subpart WWW performance testing requirement for the passive flares at Waste Management's Live Oak Landfill in DeKalb County, Georgia? A2: No. EPA does not waive the NSPS subpart WWW performance testing requirement for the passive flares because flare design flow rate data and information regarding typical landfill gas composition do not provide a sufficient basis for a waiver. To obtain such a waiver, the facility must test a portion of the flares that it installs and submit the results of the test to EPA for review. Abstract for [0500096] Q: Does EPA approve American Society for Testing Materials (ASTM) Method D 6667-01 as an alternative method, under 40 CFR part 60, subpart GG, for monitoring the sulfur content of natural gas burned in three gas turbines at the Williams Pipeline site in Coden, Alabama? A: Yes. EPA has previously approved the proposed alternative method under NSPS subpart GG for measuring natural gas sulfur content at more than twenty separate turbine installations nationwide in lieu of the four ASTM methods for determining the sulfur content of gaseous fuels listed in 40 CFR 60.335(d). Abstract for [0500097] Q: Does EPA approve a proposal to temporarily abandon gas collection wells during vertical expansion in active areas that have held waste for five years or more, under 40 CFR part 60, subpart WWW, at Waste Management's Live Oak Landfill in DeKalb County, Georgia? A: No. EPA does not approve under NSPS subpart WWW the proposal to disconnect the wells for a six to twelve month period while a vertical expansion is taking place because it would constitute a relaxation of the applicable emission standard. Abstract for [0500098] Q1: Does EPA allow Clayton County, Georgia, which missed the deadline for a Tier 2 retest at its SR3 Municipal Solid Waste Landfill, to have the option of conducting another Tier 2 test prior to the deadline for submittal of a gas collection and control (GCCS) system design plan under 40 CFR part 60, subpart Cc? A1: Yes. EPA has determined that additional Tier 2 testing can be conducted any time prior to the deadline for installation of a GCCS (30 months after the landfill's nonmethane organic compound emission rate exceeds 50 megagrams per year), provided that a design plan is submitted by the applicable deadline (12 months after the landfill's nonmethane organic compound emission rate exceeds 50 megagrams per year). Q2: Could EPA clarify whether the results of initial Tier 2 testing in 1998 or of a Tier 2 retest in 2003 should be used for calculating the 2003 nonmethane organic compound (NMOC) emission rate, under 40 CFR part 60, subpart Cc, at the Clayton County, Georgia, Municipal Solid Waste Landfill? A2: Once the deadline for Tier 2 retesting has passed, NMOC emission rates under NSPS subpart WWW must be calculated using the 4000 part per million default value, unless additional Tier 2 testing is done. If additional testing is done, the NMOC concentration results from this retest, rather than the default value, would apply for calculating the NMOC emission rate for year 2003. Abstract for [0500099] Q: Does EPA approve a proposal for shortening the visible emission (VE) observation from three hours to one hour for conveyor drop points, under 40 CFR part 60, subpart Y, at DTE Energy Services' coal preparation plant in Belews Creek, North Carolina? A: Yes. EPA approves the request to shorten the VE observation time to one hour when no individual opacity readings exceed 15 percent during the first hour of readings. Demonstrating that opacity levels do not exceed 15 percent of the applicable limit for an entire hour will provide adequate assurance of compliance with the opacity limit in NSPS subpart Y. Abstract for [0500100] Q: Could EPA verify whether a continuous opacity monitoring system (COMS) located on a replacement stack for a boiler at Trigen Biopower in Caldwell, North Carolina, should be subject, under 40 CFR part 60, subpart Dc, to certification requirements in the latest version of Performance Specification 1 (PS-1)? A: Yes. EPA finds that under NSPS subpart Dc, the COMS is subject to the latest PS-1 certification requirements. Installing the monitor on the replacement stack constitutes relocation because a replacement stack is likely to differ in some respects from the original stack, and there is no way to be absolutely sure two stacks are completely identical. Relocating a COMS is one of the conditions requiring monitor certification in the August 10, 2000 version of PS-1. Abstract for [0500101] Q: Does EPA waive the requirement to conduct a performance test on a flare that controls volatile organic compound (VOC) emissions from air oxidation and distillation operations, under 40 CFR part, 60 subparts III and NNN, at Albemarle Corporation's chemical plant in Orangeburg, South Carolina? A: Yes. EPA waives the performance requirement under NSPS subparts III and NNN. Information supplied by the company demonstrates that the flare tip velocity will be less than 50 percent of the applicable limit even if the total volume of reactants for the hydrogen cyanide production unit were vented through the control device. Hence, the velocity limit promulgated in 40 CFR 60.18(c)(3)(i)(A) will not be exceeded. Abstract for [0500102] Q: Does EPA waive the requirement to install gas collection wells in active landfill areas that have held waste for five years or more, under 40 CFR part 60, subpart WWW, at the Central Disposal Facility in Brevard County, Florida? A: No. EPA does not waive this requirement. Such a waiver would constitute an unacceptable relaxation of the emission standards of NSPS subpart WWW because landfill gas that would be collected and routed to control equipment under the rule's provisions would instead be released to the atmosphere without controls. Abstract for [0500103] Q1: Does EPA waive the requirement to conduct an initial performance test, under 40 CFR part 60, subpart GG, on two of the three combustion turbines at Forsyth Energy Project's (FEP) plant in Forsyth County, North Carolina? A1: Yes. EPA grants this waiver request. Under the conditions proposed by FEP, EPA finds the test results for one of the three identical turbines will provide adequate assurance that the other two units also comply with NSPS subpart GG. Additionally, the use of nitrogen oxides continuous emissions monitors (NOX CEMS) at FEP provides a further source of credible evidence regarding the compliance for all three turbines following the initial testing. Q2: Does EPA waive the requirement to keep records of the annual capacity factor, under 40 CFR part 60, subpart Db, for FEP's auxiliary boiler? A2: Yes. EPA waives this requirement. EPA finds that since the [[Page 21022]] company is not seeking an exemption from the nitrogen oxides limit under NSPS subpart Db, there is no regulatory need for information regarding the auxiliary boiler's annual capacity factor. Abstract for [0500104] Q: Does EPA approve the shortening in duration of the initial opacity performance test, under 40 CFR part 60, subpart Dc, from three hours to one hour if there are no opacity readings greater than ten percent during the initial hour of observations on three oil-fired boilers at the RJ Reynolds plant in Tobaccoville, North Carolina? A: Yes. EPA approves the request under NSPS subpart Dc based upon the expectation that there will be a low variability in opacity levels when oil is used to fire these boilers. The test duration can be shortened to one hour for any of the boilers that does not have individual opacity readings exceeding 10 percent for each of the 15- second visible emissions readings taken during the first hour of observations. Abstract for [0500105] Q: Does EPA approve an alternative hydrogen sulfide (H2S) monitoring proposal, under 40 CFR part 60, subpart J, submitted for refinery fuel gas burned in a reformer furnace at the Air Products and Chemicals Catlettsburg, Kentucky hydrogen plant? A: Yes. EPA approves under NSPS subpart J the proposed H2S alternative monitoring plan. The hydrogen sulfide content of the reformer's fuel gas and fuel gas streams is inherently low, and Air Products has an economic incentive to keep these levels low in order to prevent poisoning the hydrogen reformer catalyst. Abstract for [0500106] Q: Does EPA approve an alternative span value of 70 percent, under 40 CFR part 60, subpart D, proposed for two hog fuel boilers at Weyerhaeuser's Kraft pulp mill in Plymouth, North Carolina? A: Yes. EPA approves the proposed alternative span value under NSPS subpart J because it will not interfere with the facility's ability to identify and report emissions' exceedances for opacity as stated in 40 CFR 60.45(g)(1). In addition, the proposed alternative span value for the hog fuel boilers will improve the overall effectiveness of Weyerhaeuser's continuous opacity monitoring systems (COMS) quality assurance program by ensuring that all five units with COMS at the Plymouth mill have the same span value. Abstract for [0500107] Q: Does EPA waive the requirement to conduct an initial performance test on two existing baghouses used to control particulate emissions from materials handling equipment, under 40 CFR part 60, subpart OOO, at the Monarch Ceramic Tile plant in Florence, Alabama? A: No. EPA does not approve this request under NSPS subpart OOO. Given the increase in particulate loading at the baghouse inlet and the amount of time elapsed since the last performance test, prior test results do not provide adequate assurance of compliance for new equipment being added to the plant. Abstract for [0500108] Q: Does EPA approve the alternative monitoring plan for opacity as proposed for a backup package boiler for additional steam generation, under 40 CFR part 60, subpart Db, at the Jefferson Smurfit linerboard mill in Fernadina Beach, Florida? A: No. Although EPA has approved proposals for the monitoring of opacity using visible emissions data collection instead of using a continuous opacity monitoring system (COMS), the proposed alternative monitoring plan includes provisions which are not acceptable to ensure continuous compliance. The specific provisions that must be removed from this proposal before it can be approved by EPA include requests for making opacity readings only on days when the boiler operates for more than six hours, and those provisions that eliminate opacity readings on weekends and holidays. Also, if the company seeks an exemption from monitoring during periods when weather conditions make it impractical to collect opacity data, the proposal must be revised to identify the very specific conditions under which such an exemption could be justified. Abstract for [0500109] Q: Does EPA approve an alternative monitoring proposal, under 40 CFR part 60, subparts H, T, U and V, using English units of measure, rather than metric units of measure, for facilities at the U.S. Agri- Chemicals plant in Polk County, Florida? A: Yes. With regard to NSPS subpart H; EPA approval for the use of English units is not required, as the applicable monitoring provisions in the rule do not specifically require the use of metric units. Although the monitoring provisions in NSPS subparts T, U, and V require that feed rate data be expressed in metric units (i.e., megagrams per hour), EPA approves using English units (tons per hour) to satisfy these requirements because the fluoride emission limits in these rules are expressed in both metric and English units, and this does not hinder a compliance determination. Abstract for [0500110] Q: Does EPA approve a proposal to use an automated system to distinguish between gasoline truck tanks and diesel truck tanks, under 40 CFR part 60, subpart XX, in order to bypass the vapor recovery unit (VRU) during diesel loading at the Marathon Ashland Petroleum (MAP) bulk gasoline terminal in Knoxville, Tennessee? A: Based on the information submitted, EPA cannot approve the proposed alternative monitoring plan at this time. However, the concept behind the proposal has merits. For further consideration of the alternative monitoring plan, MAP must submit to EPA additional information including: A demonstration that volatile organic compound (VOC) concentrations differ enough between different loading scenarios for a continuous monitor to tell when diesel trucks are being loaded; data regarding VOC monitor response time; and details regarding the quality assurance/quality control procedures for the continuous monitor. Abstract for [0500111] Q1: Does EPA approve the use of EPA Method 22, under 40 CFR part 60, subpart UU, as an alternative to EPA Method 9 for determining compliance with the opacity standard for mineral handling and storage facilities at the TAMKO Roofing Products plant in Clay County, Florida? A1: No. EPA Method 22 is not an acceptable alternative to EPA Method 9 because it determines the total duration of visible emissions during the test period but does not record opacity levels when visible emissions are present. Therefore, the use of EPA Method 22 makes it impossible to determine the magnitude of any violations under NSPS subpart UU. Q2: Does EPA waive the requirement to conduct opacity performance testing, under 40 CFR part 60, subpart UU, on mineral surge tanks and limestone surge tanks located inside a building at the TAMKO Roofing Products plant in Clay County, Florida? A2: No. EPA denies this waiver request. The applicable opacity standard in NSPS subpart UU applies to tanks located inside a building. EPA Method 9 can be performed inside buildings. Furthermore, in order to obtain approval for an opacity performance test waiver, [[Page 21023]] the facility must supply information that could be used to demonstrate compliance through other means. No such information was provided in this request. Abstract for [0500112] Q: Does EPA approve an alternative monitoring proposal, under 40 CFR part 60, subpart A, for maintaining records of startups, shutdowns, and malfunctions periods only when there are occurrences of excess emissions at the Eastman Chemical plant in Kingsport, Tennessee? A: Yes. EPA approves this alternative recordkeeping proposal under NSPS general provisions, subpart A, because the primary use for these records is to determine the applicability of the provisions in 40 CFR 60.8(c). Thus, limiting recording of emissions data at this type of facility during periods of startup, shutdown, and malfunction only when there are occurrences of excess emissions is acceptable and should not affect identifying compliance violations. Abstract for [0500113] Q: Does EPA approve the use of sensory means (i.e., sight, sound, and smell) as an acceptable alternative, under 40 CFR part 60, subpart VV, to using EPA Method 21 for detecting leaks from equipment in acetic acid service at the Eastman Chemical plant in Kingsport, Tennessee? A: Yes. EPA approves this alternative under NSPS subpart VV because prior monitoring results submitted by the facility show that the number of leaks identified using sensory methods for equipment in acetic acid service has been significantly higher than the number detected using solely EPA Method 21. Also, all of the previous leaks found using EPA Method 21 would have been detected if only sensory methods had been used. Abstract for [0500114] Q1: Does EPA approve a reduction in the duration of visible emission testing, under 40 CFR part 60, subpart Y, for conveyor belt transfer points at Eastman Chemical Company's (Eastman) plant in Kingsport, Tennessee? A1: Yes. EPA approves the request under NSPS subpart Y to shorten the test duration from three hours to one hour if no individual readings exceed 20 percent and no more than three individual readings equal 20 percent during the first hour of observations. Q2: Does EPA waive the requirement to enter a building and conduct separate visible emission tests, under 40 CFR part 60, subparts Y and OOO, on several conveyor belt transfer points if 75 minutes of EPA Method 22 observations indicate that there are no fugitive emissions from the building? A2: Yes. EPA waives the requirement under NSPS subparts Y and OOO to conduct separate visible emission tests for the conveyor belt transfer points because the use of Method 22 to verify that there are no fugitive emissions from the building offers adequate assurance of compliance for the facilities inside. Abstract for [0500115] Q: Does EPA approve a proposed alternative surface methane concentration monitoring frequency, under 40 CFR part 60, subpart WWW, for a Class III area at the North County Resource Recovery Facility operated by the Solid Waste Authority of Palm Beach County, Florida? A: Yes. EPA approves this alternative under NSPS subpart WWW because methane generation rates in the Class III area are expected to be low given the types of waste (construction demolition debris, trash, paper, and glass) placed there, and because no methane was detected during five successive quarterly monitoring periods. However, as this landfill is still active, the condition for this approval is that a methane concentration of 250 ppm, rather than 500 ppm, will be used as a trigger for reverting back to a quarterly methane surface monitoring frequency. Abstract for [0500116] Q1: Does EPA approve the option for landfill facilities to conduct additional Tier 2 testing, under 40 CFR part 60, subpart WWW, if an annual report indicates that the nonmethane organic compound (NMOC) emission rate calculated with previous Tier 2 results exceeds 50 megagrams/year? A1: Yes. EPA approves this request because, as Tier 2 testing is conducted every five years and NSPS subpart WWW requires periodic retesting, it would be inconsistent and unreasonable to deny facilities the option of conducting additional testing that might improve the accuracy of test data. With additional testing, NMOC emission rates calculated with new Tier 2 data will be more representative of current conditions than results calculated using older data. Q2: Does the presence of an existing gas collection and control system (GCCS) affect NMOC emission rate calculations under 40 CFR part 60, subpart WWW? A2: No. The presence of an existing GCCS does not affect the NMOC emission rate calculations under NSPS subpart WWW. The variables specified in 40 CFR 60.754(a)(1) for calculating NMOC emission rates are not associated with GCCS operation. Depending on the calculated NMOC emissions rate, the facility may be required to submit a design plan for existing or planned control systems for gas emission within a specified timeframe. Abstract for [0500117] Q: Does EPA approve a proposal to conduct monthly oxygen concentration monitoring at the inlet to the flare, rather than at each individual well, under 40 CFR part 60, subpart CC, at Onyx Waste Services' Pecan Road Landfill in Valdosta, Georgia. A: No. EPA does not approve the proposed alternative monitoring location under NSPS subpart CC because it is downstream of the point where the gas from all the wells in the collection system combines. No conclusions regarding the performance of individual wells can be drawn from the results at this monitoring location. In addition, maintaining an oxygen concentration of 5 percent or less at the flare inlet will not provide assurance that all wells comply with subpart CC. Abstract for [0500118] Q: Does EPA approve the alternative opacity monitoring proposed, under 40 CFR part 60, subpart CC, for two glass melting furnaces at the Anchor Glass Company plant in Warner Robbins, Georgia? A: EPA may approve the proposal if remaining issues can be resolved. Although the proposal to monitor furnace bridgewall temperature as an alternative to installing a continuous opacity monitoring system (COMS) under NSPS subpart CC appears reasonable, there are several issues that need to be resolved before the proposal can be approved. These issues include: the appropriate margin of compliance with the applicable particulate emission standard if a COMS is not used; the possibility that natural gas usage rates will need to be monitored in addition to bridgewall temperatures, and what constitute excess emissions. Abstract for [0500119] Q: Could EPA clarify whether the addition of in-line blending equipment to a loading rack at the Magellan Midstream Partners (Magellan) bulk gasoline terminal in Greensboro, North Carolina, would trigger the requirement for a retest, under 40 CFR part 60, subpart XX, on the vapor recovery unit (VRU) that controls emissions during loading? A: No. EPA has determined that adding the in-line blending equipment [[Page 21024]] does not automatically trigger VRU retest. The initial VRU test that the company conducted in February 2000 is the only test specifically required for sources subject to NSPS subpart XX. Although the Administrator can ask for a retest at anytime, EPA does not find it necessary to require a new test following the installation of the in- line blending equipment at Magellan's Greensboro terminal. Adding the in-line blending equipment did not increase the number of trucks that can be loaded simultaneously at the terminal. Also, there was a significant margin of compliance during the initial test. Abstract for [0500120] Q: Does EPA approve EPA Method 25A as an alternative to EPA Method 25, under 40 CFR part 60, subpart TT, for carbon absorber efficiency testing on a metal coil coating line at the Thermalex plant in Montgomery, Alabama? A: Yes. EPA approves EPA Method 25A as an acceptable alternative to EPA Method 25 for control device efficiency testing where VOC concentrations in the control system exhaust are expected to be 50 ppm or less. In this case, the VOC concentration is expected to be approximately 10 ppm at the carbon absorber outlet which is acceptable. Abstract for [0500121] Q: Does EPA approve as an alternative to EPA Method 21, under 40 CFR part 60, subpart VV, sensory means (i.e.>, sight, sound, smell) to identify leaks from equipment in acetic acid and/or acetic anhydride service at the Eastman Chemical Company facility in Kingsport, Tennessee? A: Yes. EPA approves the proposed alternative monitoring under NSPS subpart VV because monitoring results provided indicate that leaks from equipment are more easily identified through sensory methods than through EPA Method 21. The physical properties (i.e., high boiling points, high corrosivity, and low odor threshold) of acetic acid and acetic anhydride and the process conditions at the facility in question make sensory means preferable. Abstract for [0500122] Q: Does EPA approve a boiler derate proposal, under 40 CFR part 60, subpart Db, based on changes made to the natural gas burner at North Carolina Baptist Hospital in Winston-Salem, North Carolina? A: Yes. EPA approves this proposal under NSPS subpart Db because it has determined that the proposed derate method, which includes installing new boiler tips limiting the heat input capacity to 100 mmBtu/hr and eliminating the burning of fuel oil, will reduce the capacity of the boiler and will comply with EPA's policy on derates. Abstract for [0500123] Q1: Does EPA approve an alternative monitoring procedure, under 40 CFR part 60, subpart UUU, for a spray tower scrubber at the Short Mountain Silica Company in Mooresburg, Tennessee? A1: Yes. EPA approves the proposed alternative under NSPS subpart UUU to monitor the scrubbing liquid supply pressure and scrubbing liquid flow rate rather than measuring the pressure loss of the gas stream through the scrubber and the scrubbing liquid flow rate. Because there is little pressure drop of the gas stream as it passes through the spray tower, pressure drop is not a good indicator of spray tower efficiency. Q2: Does EPA waive the requirement, under 40 CFR part 60, subpart UUU, to conduct a performance test for a rotary dryer which serves as a backup for the fluidized bed dryer at the Short Mountain Silica Company in Mooresburg, Tennessee? A2: Yes. EPA approves the performance test waiver under NSPS subpart UUU because demonstration of compliance for the fluidized bed dryer also shows an acceptable level of compliance assurance for the rotary dryer. Abstract for [0500124] Q: Does EPA approve the use of nitrogen oxides continuous emission monitors (NOX CEMs), under 40 CFR part 60, subpart GG, as an alternative to the four-point load test for gas turbines at Cinergy's South Houston Green Power Site facility in Houston, Texas? A: Yes. EPA approves the alternative monitoring proposal under NSPS subpart GG, provided that the CEMs for NOX is capable of calculating a one-hour average NOX emissions concentrations corrected to 15 percent oxygen, and the facility submits reports of excess emissions and summary reports. Abstract for [0500125] Q: Does EPA approve a 90-day extension of the performance testing deadline, under 40 CFR part 60, subparts A and I, in light of weather conditions and material shortages that made it impossible for the Pavers Supply facility in Conroe, Texas, to run at full rates? A: No. EPA denies the request for a 90-day extension under NSPS subpart I. Concurring with the Texas Commission on Environmental Quality (TCEQ), EPA grants a 60-day extension pursuant to 40 CFR 60.8(d). Abstract for [0500126] Q: Does EPA approve a span setting of 100 ppmv on an outlet continuous emission monitor (CEM), under 40 CFR part 60, subpart J, for the sulfur dioxide (SO2), CEMs for the fluid catalytic cracking unit wet gas scrubber (WGS) at the Shell Oil Products refining facility in Deer Park, Texas? A: Yes. EPA approves under NSPS subpart JJ the span setting of 100 ppmv for the WGS outlet SO2 CEMs, as it will be acceptable with respect to the 50 ppmv rolling seven day average. Abstract for [0500127] Q: Does EPA waive continuous emission monitor for the hydrogen sulfide (CEM H2S) stream monitoring, under 40 CFR part 60, subpart J, for the steam methane reformer unit pressure swing adsorption (PSA) at Valero's Corpus Christi-West Plant, in Corpus Christi, Texas? A: Yes. EPA grants this waiver request under NSPS subpart J because it has determined that no CEM HS needs to be installed for the purpose of monitoring the H2S in the off-gas vent streams in the PSA routed to the reformer heater. Instead, the alternative parameter will be the total sulfur content of the combined feed to the sulfur vapor recovery (SVR) unit. Abstract for [0500128] Q: Does EPA waive continuous emission monitor for the hydrogen sulfide (CEM H2S) stream monitoring, under 40 CFR part 60, subpart J, for the catalytic reformer unit heater fuel gas from fuel gas drums numbers 1 and 2 (which is a refinery and generates gas stream) at Valero's Corpus Christi-West Plant, in Corpus Christi, Texas? A: Yes. EPA grants this waiver request under NSPS subpart J because it has determined that no CEM H2S needs to be installed for the purpose of monitoring the H2S in the off-gas vent streams from fuel gas mixing drum 1 or 2 routed to the reformer heater. Instead, the alternative parameter will be the total sulfur content of the combined feed to the CRU unit. Abstract for [0500129] Q: Does EPA approve the use of an alternative monitoring plan, under 40 CFR part 60, subpart J, for the soil vapor extraction system (SVE) at Western Refining's facility in El Paso, Texas? A: Yes. EPA approves the alternative monitoring proposal under NSPS subpart J to measure H2S content directly at the inlet to the internal [[Page 21025]] combustion engine (ICE), which are components of the SVE system. Abstract for [0500130] Q: Does EPA approve an alternative monitoring plan, under 40 CFR part 60, subpart J, for the catalytic reformer 1 unit (CR-1) at Motiva Enterprises' facility in Norco, Louisiana? The company proposes waiving the continuous monitoring system (CMS) requirement for hydrogen sulfide (H2S) steam monitoring and instead monitoring the gas stream using EPA guidance on alternative monitoring plans for low sulfur refinery fuel gas streams. A: Yes. EPA approves this alternative monitoring under NSPS subpart J. No CMS needs to be installed for the purpose of monitoring the H2S in the make gas stream to the unit's heaters. Instead, H2S concentrations will be monitored using detection tubes. This determination is subject to the conditions set forth in the stipulated guidance in EPA's letters to Koch Fuels on December 2, 1999 and February 13, 2001 (see ADI Control Numbers 0500137 and 0100037). Abstract for [0500131] Q: Does EPA approve an alternative monitoring for the hydrogen generation unit (HGU) torvex catalytic converter, under 40 CFR part 60, subpart J, at Motiva Enterprises' facility in Convent, Louisiana? A: Yes. EPA approves this alternative monitoring under NSPS subpart J. No CEM needs to be installed for the purpose of monitoring the H2S in the H2S Concentration Column overhead vent stream. Instead, the H2S concentration will be measured daily using detection tubes, with ranges and frequency as set forth in the stipulated guidance in EPA's letters to Koch Fuels on December 2, 1999 and February 13, 2001 (see ADI Control Numbers 0500137 and 0100037). Abstract for [0500132] Q: Does EPA approve certain monitoring, recordkeeping, and reporting provisions of 40 CFR part 60, subpart RRR, as alternative monitoring requirements, under 40 CFR part 60, subpart NNN, for DuPont's Sabine River Works facility in Orange County, Texas? A: Yes. EPA conditionally approves use of the proposed provisions in NSPS subpart RRR as an alternative means of demonstrating compliance under NSPS subpart NNN for the specified distillation unit. As conditions of approval, the facility must comply with the recordkeeping and reporting requirements for flow indicators in NSPS subpart RRR, and must maintain a schematic diagram for all related affected vent streams, collection system(s), fuel systems, control devices, and bypass systems as stated in 60.705(s). Abstract for [0500133] Q: Does EPA approve certain monitoring, recordkeeping, and reporting provisions of 40 CFR part 60, subpart RRR, as alternative monitoring requirements, under 40 CFR part 60, subpart NNN, for DuPont's facility in La Porta, Texas? A: Yes. EPA conditionally approves use of the proposed provisions in NSPS subpart RRR as an alternative means of demonstrating compliance under NSPS subpart NNN. As conditions of approval, the facility must comply with the recordkeeping and reporting requirements for flow indicators in NSPS subpart RRR, and must maintain a schematic diagram for all related affected vent streams, collection systems, fuel systems, control devices, and bypass systems as stated in 40 CFR 60.705(s). Abstract for [0500134] Q: Does EPA approve an alternative performance specification procedure, under 40 CFR part 60, subpart B, allowing the use of seven consecutive unit operating days instead of seven consecutive calendar days for the calibration drift test period at Cottonwood Energy's facility in Deweyville, Texas? A: Yes. EPA conditionally approves the use under NSPS subpart B of seven consecutive operating days for the calibration drift test period, based on previous EPA determinations and guidance that a seven consecutive operating day test is more stringent than a seven consecutive calendar day test. As a condition of this approval, if the continuous monitoring system CMS fails the seventh day test, the facility will repeat the entire test. Abstract for [0500135] Q1: Does EPA approve alternative monitoring, recordkeeping, and reporting requirements, under 40 CFR part 60, subpart Db, for a cogeneration unit at Shell Chemical Company's facility in Geismar, Louisiana commensurate with past determinations? A1: No. EPA does not approve the alternative monitoring plan under NSPS subpart Db because the determination letter (ADI Control Number PS15), referenced in Shell's proposal, does not apply to the fuel records required by 40 CFR 60.49b. Q2: Does EPA approve an alternative reporting of nitrogen oxides (NOX) emissions requirements, under 40 CFR part 60, subpart Db, where the NOX emission limit and excess emissions are reported on an average ``steam generating unit operating day'' basis, instead of a 30-day average for Shell Chemical Company's facility in Geismar, Louisiana? A2: Yes. EPA approves the alternative reporting plan under NSPS subpart Db, provided that the records for the units specified in 40 CFR 60.49(b) are maintained on-site and are available at the request of any state or Federal agency inspector. Abstract for [M050047] Q: Does EPA consider the C-12 process area of INVISTA's Victoria Plant and its component chemical manufacturing process units (CMPUs) subject to 40 CFR part 63, subpart H, the HON rule? A: No. As none of these units qualify for regulation under both 40 CFR 63.100(b) and 40 CFR 63.100(b)(1)-(2), the only way likely for the C-12 process area to qualify for regulation under 40 CFR 63.100 would be to conflate all CMPUs into a single CMPD. Since these units are not conflated into a single CMPD unit, these units are not subject to the HON Rule. This finding is consistent with a previous determination, ADI Control Number M960028. Abstract for [0500136] Q1: Does 40 CFR part 60, subpart NNN, apply to the SP-1 and SP-2 distillation units at INVISTA's Victoria Plant? A1: No. Since the SP-1 and SP-2 units produce no products, by- products, or co-products, or intermediates listed in 40 CFR 60.667, NSPS subpart NNN does not apply to these two units. Q2: Does 40 CFR part 60, subpart NNN, apply to a concentrated water wash (CWW) system at INVISTA's Victoria Plant? A2: Yes. Since the CWW vents into the atmosphere, it is subject to NSPS subpart NNN. Abstract for [0500137] Q1: How does 40 CFR part 60, subpart J, apply to the fuel gas combustion devices (FGCDs) and fuel gases involved with operations at Koch Refining's Rosemount, Minnesota, refinery? A1: NSPS subpart J apply to an affected FGCD if the device combusts a ``fuel gas,'' that is, any gas that is generated at a petroleum refinery. To control sulfur oxide (SOX) emissions into the atmosphere from affected [[Page 21026]] FGCDs, NSPS subpart J limits the amount of hydrogen sulfide (H2S) allowed in the fuel gas burned in these devices. Except for fuel gas released to a flare as a result of relief valve leakage or other emergency malfunctions, a facility may not burn fuel gas containing greater than 230 mg/dscm of H2S in any affected FGCD. Q2: How does the process upset gas exemption of 40 CFR part 60, subpart J, apply to the flare gas recovery system in operation at Koch Refining's Rosemount, Minnesota, refinery? A2: The process upset gas exemption under NSPS subpart J applies only to extraordinary, infrequent, and not reasonably preventable upsets. Any gases released as a result of normal operations are not considered upset gases. The routine combustion of refinery gases in a FGCD, including flares and other waste gas disposal devices, do not qualify for the process upset gas exemption of the rule. Based on the background information of the rule, the term upset does not apply to normal operations. Therefore, the rule exempts the combustion of process upset gases in a FGCD, including the combustion in a flare of fuel gas that is released to the flare as a result of relief valve leakage or other emergency malfunction. However, the combustion/flaring of those exempted gases in an NSPS affected FGCD is still required to comply with the good air pollution control practices of 40 CFR 60.11(d), even when such FGCDs are exempt from the sulfur dioxide limit. Q3: How does NSPS subpart J apply to the various gas streams Koch Refining's Rosemount, Minnesota, refinery? A3: EPA has analyzed the 26 gas streams identified at the Koch Refining facility and has provided a finding for each of these streams based on the Agency's responses in A1 and A2, above. Abstract for [0500138] Q: Does EPA approve an alternative monitoring plan, under 40 CFR, part 60, subpart J, for fuel gases and fuel gas combustion devices (FGCDs) at Koch Refining's Rosemount, Minnesota, refinery? A: No. Based on the information submitted, EPA does not approve the proposed alternative monitoring plan for fuel gases and FGCDs since it needs to provide for good air pollution control practices to minimize flaring events. Dated: April 10, 2006. Michael M. Stahl, Director, Office of Compliance. [FR Doc. 06-3808 Filed 4-21-06; 8:45 am] BILLING CODE 6560-50-P

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