issue-1994-01-03•Federal Register proposed rules — 1994-01-03
Federal Register proposed rules — 1994-01-03
issue-1994-01-03Federal Register proposed rules — 1994-01-03Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 93-32086 Designation of Agencies To Receive and Investigate Reports Required Under the Victims of Child Abuse Act
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 81
[AG Order No. 1833-93]
Designation of Agencies To Receive and Investigate Reports
Required Under the Victims of Child Abuse Act
AGENCY: Department of justice.
ACTION: Proposed rule.
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SUMMARY: This proposed rule is intended to carry out the Attorney
General's responsibilities under the child abuse reporting provisions
of the Victims of Child Abuse Act of 1990 (VCAA). The VCAA requires
persons engaged in certain specified professions and activities on
Federal lands or facilities to report incidents of child abuse to the
appropriate Federal, State, or local agency designated by the Attorney
General. In order to facilitate effective reporting, the VCAA requires
the Attorney General to ``designate an agency'' to receive and
investigate such reports to child abuse. This proposed rule sets forth
the Attorney General's proposed designations and certain other matters
covered by the VCAA's reporting requirements.
DATES: Comments must be received by February 2, 1994.
ADDRESSES: All comments on this proposed rule should be sent to: George
C. Burgasser, Acting Chief, Child Exploitation and Obscenity Section,
Criminal Division, Department of Justice, Washington, DC 20530.
Comments received will be available for public inspection at Washington
Center Building, 1001 G Street, NW, suite 310, Washington, DC, between
the hours of 10 a.m. and 4 p.m., Monday through Friday. No oral
hearings are contemplated.
FOR FURTHER INFORMATION CONTACT: George C. Burgasser, Acting Chief,
CEOS, Criminal Division, Washington, DC 20530, (202) 514-5780.
SUPPLEMENTARY INFORMATION: The child abuse reporting provisions of the
Victims of Child Abuse Act (VCAA) were enacted as section 226 of the
Crime Control Act of 1990, Public Law 101-647, 104 Stat. 4806, codified
at 42 U.S.C. 13001-13031, 3796aa-3796aa-8, and 18 U.S.C. 403, 2258, and
3509. As set forth at 42 U.S.C. 13031, the VCAA requires persons
engaged in certain professional capacities or activities on Federal
lands or on federally operated facilities (as well as certain
facilities covered by Federal contracts) to report incidents of child
abuse occurring on such lands or facilities to an agency designated by
the Attorney General to receive and investigate such reports. Set forth
below for public comment is the proposed rule promulgating the Attorney
General's designation of the agencies to receive and investigate these
reports of child abuse. Under the provisions of 42 U.S.C. 13031(d), the
Attorney General may designate non-Federal agencies to receive and
investigate the child abuse reports, provided that the designations is
formalized by a written agreement. Under the proposed rule, reports of
child abuse made pursuant to 42 U.S.C. 13031 are to be submitted to the
Federal State, or local law enforcement or child protective services
agency that currently has jurisdiction to investigate reports of child
abuse or protect child abuse victims in the Federal land area or
facility in question. Where no agency currently qualifies for
designation under the rule, the rule designates the Federal Bureau of
Investigation to receive and investigate the reports of child abuse
until another agency qualifies for such designation.
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not have a significant adverse economic impact on a
substantial number of small entities. This rule has not been reviewed
by the Office of Management and Budget pursuant to Executive Order
12286. This rule does not have federalism implications warranting the
preparation of a Federalism Assessment in accordance with Executive
Order 12612. This rule meets the applicable standards provided in
sections 2(a) and 2(b) of Executive Order 12778.
List of Subjects in 28 CFR Part 81
Child abuse, Federal buildings and facilities.
By virtue of the authority vested in me as Attorney General,
including 28 U.S.C. 509 and 510, 5 U.S.C. 301, 42 U.S.C. 13031, and
Public Law 101-647 (104 Stat. 4806), part 81 of Chapter I of Title 28
of the Code of Federal Regulations is proposed to be added as follows:
PART 81--CHILD ABUSE REPORTING DESIGNATIONS AND PROCEDURES
Sec.
81.1 Purpose.
81.2 Submission of reports; designation of agencies to receive
reports of child abuse.
81.3 Designation of FBI in absence of other agreement.
81.4 Referral of reports.
81.5 Definitions.
Authority: 28 U.S.C. 509, 510; 42 U.S.C. 13031.
Sec. 81.1 Purpose.
The regulations in this part designate the agencies that are
authorized to receive and investigate reports of child abuse under the
provisions of 42 U.S.C. 13031.
Sec. 81.2 Submission of reports; designation of agencies to receive
reports of child abuse.
Reports of child abuse required by 42 U.S.C. 13031 shall be made to
the local law enforcement agency or local child protective services
agency that has jurisdiction to investigate reports of child abuse or
to protect child abuse victims in the land area or facility in
question. Such agencies are hereby respectively designated as the
agencies to receive and investigate such reports, pursuant to 42 U.S.C.
13031(d), with respect to Federal lands and federally operated or
contracted facilities within their respective jurisdictions, provided
that such agencies, if non-Federal, enter into formal written
agreements to do so with the Attorney General, her delegate, or a
Federal agency with jurisdiction for the area or facility in question.
Sec. 81.3 Designation of FBI.
For Federal lands, federally operated facilities, or federally
contracted facilities where no agency qualifies for designation under
Sec. 81.2 of this part, the Federal Bureau of Investigation is hereby
designated as the agency to receive and investigate reports of child
abuse made pursuant to 42 U.S.C. 13031 until such time as another
agency qualifies as a designated agency under Sec. 81.2.
Sec. 81.4 Referral of reports.
Where a report of child abuse received by a designated agency that
is not a law enforcement agency involves allegations of sexual abuse,
serious physical injury, or life-threatening neglect of a child, that
agency shall immediately report such occurrence to a law enforcement
agency with authority to take emergency action to protect the child.
Sec. 81.5 Definitions.
Local child protective services agency means that agency of the
Federal Government, of a State, or of a local government that has the
primary responsibility for child protection within a particular portion
of the Federal lands, a particular federally operated facility, or a
particular federally contracted facility in which children are cared
for or reside.
Local law enforcement agency means that Federal, State, or local
law enforcement agency that has the primary responsibility for the
investigation of an instance of alleged child abuse occurring within a
particular portion of the Federal lands, a particular federally
operated facility, or a particular federally contracted facility in
which children are cared for or reside.
Dated: December 23, 1993.
Janet Reno,
Attorney General.
[FR Doc. 93-32086 Filed 12-30-93; 8:45 am]
BILLING CODE 4410-01-M
Complete official Federal Register PDF
FR Doc. 93-32077 Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Arabis perstellata
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
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[FR Doc No: 93-32077]
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DEPARTMENT OF THE INTERIOR
50 CFR Part 17
RIN 1018-AC27
Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for Arabis perstellata
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The Service proposes to determine endangered status for the
rock cress, Arabis perstellata. There are 2 varieties of Arabis
perstellata. The small rock cress, Arabis perstellata var. perstellata,
is currently known from 27 populations in Kentucky--24 in Franklin
County, 2 in Owen County, and 1 in Henry County. The large rock cress,
Arabis perstellata var. ampla, is known from only two populations in
Rutherford County, Tennessee. The species is endangered because of
either potential or current threats from habitat alteration due to
residential, commercial, or industrial development; timber harvesting;
grazing and trampling; and competition with native and exotic weedy
species, especially the European garlic mustard (Alliaria petiolata).
This proposal, if made final, would extend the protection of the
Endangered Species Act of 1973, as amended (Act), to Arabis
perstellata.
DATES: Comments from all interested parties must be received by March
4, 1994. Public hearing requests must be received by February 17, 1994.
ADDRESSES: Comments, materials, and requests for a public hearing
concerning this proposal should be sent to the Field Supervisor,
Asheville Field Office, U.S. Fish and Wildlife Service, 330 Ridgefield
Court, Asheville, North Carolina 28806. Comments and materials received
will be available for public inspection, by appointment, during normal
business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Mr. J. Allen Ratzlaff at the above
address (704/665-1195, Ext. 229).
SUPPLEMENTARY INFORMATION:
Background
Both varieties of Arabis perstellata, var. ampla (large rock cress)
and var. perstellata (small rock cress) are perennial members of the
mustard family (Brassicaceae). The large rock cress is known from only
two counties in Tennessee, and the small rock cress is known from only
three counties in Kentucky. Both varieties have round stems and
alternate leaves. Their stems and foliage have a grayish coloration due
to the large quantity of hairs. Their stems arise from horizontal bases
and grow up to 80 centimeters (cm) (31.5 inches) long, often drooping
from rock ledges. Each year a basal rosette of leaves is produced, and
the new branches emerge from the old rosette of the previous season.
Their lower leaves vary from 4 to 15 cm (1.6 to 5.9 inches) long and
are obovate to oblanceolate with slightly toothed and pinnatifid
margins. Their upper leaves are smaller--up to 3.5 cm (1.4 inches)
long--and are elliptic to oblanceolate, with coarse teeth along the
margin. Both surfaces of their leaves are stellate-pubescent. The
inflorescence is an elongate raceme with numerous flowers. Their
flowers have four petals that are 3 to 4 millimeters (mm) (0.12 to 0.16
inch) long, are white to lavender, and have four pale green sepals that
are 2 to 3 mm (0.08 to 0.12 inch) long. There are six stamens, with two
shorter than the other four. The ovary is elongate, two-chambered, and
develops into a silique. Fruiting stalks are about 1 cm (0.4 inch) long
at maturity; siliques are up to 4 cm (1.6 inches) long and are covered
with both simple and stellate hairs. Flowering occurs from late March
to early May. Fruits mature from mid-May to early June. Their oblong
seeds are reddish brown; somewhat flattened; about 1 mm (0.04 inch)
long; and, in places, minutely hairy (Jones 1991).
Arabis perstellata was named by E. L. Braun from plants collected
between 1936 and 1939 on wooded hillsides along Elkhorn Creek in
Franklin County, Kentucky. Braun (1940) distinguished the new taxon
from the similar Arabis dentata (Torr.) T. & G. (now called Arabis
shortii [Fern.] Gleason) by its perennial habit; grayer, stellate
pubescence of stems and leaves; and longer pedicels. Fernald (1946)
treated A. shortii as a variety of A. perstellata, though it is now
generally accepted that they represent two species (Kartesz and Kartesz
1980). In 1959, plants were discovered on steep limestone cliffs above
the Stones River in Davidson County, Tennessee, by Dr. R. B. Channel.
Rollins (1960) described these plants as Arabis perstellata var. ampla
and distinguished them from the typical variety by their generally
larger size, thinner and more entire leaves, and lesser pubescence.
Rollins also reported the chromosome number of the Tennessee plants as
n=7; the chromosome number of the Kentucky plants has yet to be
determined.
Arabis perstellata is typically found on wooded steep slopes with
limestone outcrops. The outcrops tend to be moist but not wet; rarely,
plants can be found on seepy outcrops. They also may be found in
protected areas, such as around the bases of larger trees, or in areas
where there is little competition, such as around areas regularly
scoured by talus movement or erosion. The plants have a well-developed
system of rootstocks that allow them to persist in these inhospitable
sites. Sometimes the plants display a weedy tendency, colonizing recent
road cuts or animal paths through the woodlands. The plants exhibit
definite shade/light requirements, surviving in full shade or filtered
light, but are not found in full sunlight (Jones 1991).
The distribution of Arabis perstellata var. perstellata shows a
strong correlation with the Kentucky River and its tributaries
(primarily Elkhorn Creek), with the greater majority of sites occurring
in Franklin County. No sites have been found south of Frankfort along
the Kentucky River, although appropriate habitat appears to be present.
Arabis perstellata var. ampla is also associated with calcareous bluff
habitat of a specific river--the Stones River. The two extant
populations are somewhat atypical compared to historic sites because
they occur on rocky knobs about 15 miles from the Stones River (Jones
1991). The following is a description of the status of each variety of
the species within each State where the species occurs; the information
is primarily from Jones (1991).
All known Arabis perstellata var. ampla populations in Tennessee
are from the Cumberland River Subsection of the Central Basin
Physiographic Region. Prior to the status survey conducted by Jones
(1991), there were three records of large rock cress in Davidson County
and two in Rutherford County. All three of the sites in Davidson County
have been extirpated, and one of the sites in Rutherford County could
not be relocated. One additional population was discovered in
Rutherford County during the status survey. Of the two remaining
populations, one is small--about 25 plants--and covers about 0.06 acre.
The other population contains several hundred plants scattered over
about 2.2 acres. Both sites are on private land and are threatened by
competition by weedy invaders.
All known Arabis perstellata var. perstellata populations in
Kentucky are from the Eden Shale Belt Subsection of the Blue Grass
Physiographic Region. Prior to the status survey conducted by Jones
(1991), there were three counties in Kentucky with occurrence records
for the small rock cress--1 in Henry County, 2 in Owen County, and 26
in Franklin County. One site in Owen County and seven sites in Franklin
County have been extirpated. There was insufficient information to
locate four other historic records (2 in Franklin County and 2 from
unknown counties). However, 8 new populations were discovered during
the status survey, and the 27 known small rock cress sites in Kentucky
are distributed as follows: 1 population from Henry County, 2
populations from Owen County, and 24 populations from Franklin County.
Of these 27 populations, 22 of them have fewer than 100 individual
plants and 12 have 20 or fewer. The immediate threats to the 27
remaining populations include the following: (1) Eight are threatened
by weedy competitors, (2) four by weedy competitors and trampling, (3)
two by trampling, (4) one by logging, and (5) one by road work. The
remaining 11 populations do not appear to have any immediate threats
but are vulnerable to the aforementioned threats as well as other
habitat alterations and potential inbreeding problems as neighboring
populations decline. All of the Kentucky populations are privately
owned. Three receive limited protection through their inclusion in
State designated natural areas.
Federal government actions on these species began with section 12
of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), which
directed the Secretary of the Smithsonian Institution to prepare a
report on those plants considered endangered, threatened, or extinct.
This report, designated as House Document No. 94-51, was presented to
Congress on January 9, 1975. On July 1, 1975, the Service published a
notice (40 FR 27823) that formally accepted the Smithsonian report as a
petition within the context of section 4(c)(2) (now section 4(b)(3)) of
the Act. By accepting this report as a petition, the Service also
acknowledged its intention to review the status of those plant taxa
named within the report. Arabis perstellata var. ampla and Arabis
perstellata var. perstellata were included in the Smithsonian report
and in the July 1, 1975, Notice of Review. On June 16, 1976, the
Service published a proposed rule (41 FR 24523) to determine
approximately 1,700 vascular plant taxa to be endangered species
pursuant to Section 4 of the Act; Arabis perstellata var. ampla and
Arabis perstellata var. perstellata were included in that proposal.
The 1978 amendments to the Act required that all proposals over 2
years old be withdrawn. In the December 10, 1979, Federal Register (44
FR 70796), the Service published a notice withdrawing plants proposed
on June 16, 1976. The revised Notice of Review for Native Plants
published on December 15, 1980 (45 FR 82480), included Arabis
perstellata var. ampla and Arabis perstellata var. perstellata as
category 1 candidates. Category 1 candidates are those for which the
Service has on file substantial information on biological vulnerability
and threats to support the appropriateness of proposing to list the
taxa as threatened or endangered. These species were retained in their
respective categories when the Notice of Review for Native Plants was
revised in 1983 (48 FR 53640) and 1985 (50 FR 39526), but Arabis
perstellata var. ampla was then thought to be possibly extinct. In the
1990 Notice of Review (55 FR 6184), Arabis perstellata var. ampla was
changed to a category 2 species due to the uncertainty of its status.
Category 2 species are those for which the Service has information
indicating that proposing to list them as endangered or threatened may
be appropriate but for which substantial data on biological
vulnerability and threats are not currently known or on file to support
the preparation of rules. The Service funded surveys in 1989 to
determine the status of Arabis perstellata var. perstellata in
Kentucky. The contractors conducting the status survey for Arabis
perstellata var. perstellata included a review of Arabis perstellata
var. ampla in Tennessee. Final reports on these surveys were accepted
by the Service in 1991.
Section 4(b)(3)(B) of the Act, as amended in 1982, requires the
Secretary to make certain findings on pending petitions within 12
months of their receipt. Section 2(b)(1) of the 1982 amendments further
requires that all petitions pending on October 13, 1982, be treated as
having been newly submitted on that date. This was the case for Arabis
perstellata var. ampla and Arabis perstellata var. perstellata because
of the acceptance of the 1975 Smithsonian report as a petition. On
October 13, 1983, and in October of each year thereafter, through 1992,
the Service found that the petitioned listing of Arabis perstellata
var. perstellata and Arabis perstellata var. ampla was warranted but
precluded by work on higher priority species. The Service's present
decision to propose Arabis perstellata for listing is based on results
of the above-mentioned status survey and current priorities, and it
represents the final petition finding for the large and small rock
cresses.
Summary of Factors Affecting the Species
Section 4(a)(1) of the Act and regulations (50 CFR part 424)
promulgated to implement the listing provisions of the Act set forth
the procedures for adding species to the Federal lists. A species may
be determined to be an endangered or threatened species due to one or
more of the five factors described in section 4(a)(1). These factors
and their application to the 2 varieties of rock cress, Arabis
perstellata var. ampla (large rock cress) and Arabis perstellata var.
perstellata (small rock cress), are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Arabis perstellata var. perstellata--Of the 27 known populations of
small rock cress, 16 are threatened with destruction or adverse
modification of their habitat--8 by weedy competitors, 4 by weedy
competitors and trampling, 2 by trampling, 1 by logging, and 1 by road
work. The remaining 11 populations do not appear to have any immediate
threats but are vulnerable to the aforementioned threats as well as
other habitat alterations and potential inbreeding problems as
neighboring populations decline. Active management is required to
ensure that the species continues to survive at all sites.
Arabis perstellata var. ampla--Both of the remaining large rock
cress populations in Tennessee are threatened from competition by weedy
invaders and potentially by livestock grazing and trampling. Also, the
smaller site appears to be made up of older individuals, and there is
little evidence of reproduction (Jones 1991).
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
At this time there is little or no commercial trade in Arabis
perstellata var. ampla or Arabis perstellata var. perstellata. Most
populations of the species are very small and cannot support the
collection of plants for scientific or other purposes. Collecting for
scientific purposes or as a novelty could pose a threat to the species.
C. Disease or Predation
Disease and predation do not appear to be factors affecting the
continued existence of the species at this time (Jones 1991).
D. The Inadequacy of Existing Regulatory Mechanisms
The large rock cress is listed as endangered in Tennessee by
Collins et al. (1978) and Somers (1989). Endangered species in
Tennessee receive some protection through the ``Rare Plant Protection
and Conservation Act of 1985'' (Tennessee Department of Conservation,
1987). The removal of plants from State properties for scientific,
educational, or propagative purposes is controlled, as is the
disturbance of the species on private lands without the landowner's
consent. There is no protection for the species if its presence
conflicts with public works projects (e.g., road building).
In Kentucky, the small rock cress is listed as endangered by the
Kentucky Academy of Science and Kentucky State Nature Preserves
Commission (Branson et al. 1981, Warren et al. 1986). These lists,
however, have no legal standing in the State.
Should Arabis perstellata be added to the Federal list of
endangered and threatened species, additional protection from taking
will be provided to any populations of rock cress that may be
discovered on Federal land and to other populations when the taking is
in violation of any State law, including State trespass laws.
Protection from inappropriate commercial trade would also be provided.
E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence
Both varieties of rock cress, Arabis perstellata var. ampla and
Arabis perstellata var. perstellata could be facing potential
inbreeding problems as neighboring populations decline.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by Arabis perstellata in determining to propose
this rule. Based on this evaluation, the preferred action is to list
Arabis perstellata as an endangered species. Both varieties of the
plant face imminent threats and are in danger of extinction throughout
their range. In accordance with the definition found in section 3(6) of
the Act, such a species would qualify for designation as endangered.
Proposing threatened status would not be consistent with the apparent
status of the species.
Critical Habitat
Section 4(a)(3) of the Act, as amended, requires that, to the
maximum extent prudent and determinable, the Secretary designate any
habitat of a species, which is considered to be critical habitat, at
the time the species is determined to be endangered or threatened. The
Service's regulations (50 CFR 424.12(a)(1)) state that designation of
critical habitat is not prudent when one or both of the following
situations exist: (1) The species is threatened by taking or other
activity and the identification of critical habitat can be expected to
increase the degree of threat to the species or (2) such designation of
critical habitat would not be beneficial to the species. The Service
finds that designation of critical habitat is not prudent for this
species due to both situations.
Most populations of this species are small, and the loss of even a
few individuals to activities such as collection for scientific
purposes could extirpate the species from some locations. Taking,
without permits, is prohibited by the Act from locations under Federal
jurisdiction; however, none of the known populations of Arabis
perstellata is under Federal jurisdiction. Therefore, publication of a
critical habitat description and maps would increase the vulnerability
of the species without significantly increasing protection.
Regulations promulgated for the implementation of Section 7 of the
Act provide for both a ``jeopardy'' standard and a ``destruction or
adverse modification'' of critical habitat standard. Due to the highly
precarious status of this species, any significant adverse modification
or destruction of the species' habitat would also likely jeopardize the
species' continued existence, thereby triggering both standards.
Therefore, no additional protection for the plant would accrue from
critical habitat designation that would not also accrue from listing of
the species.
The owners and managers of all the known populations of Arabis
perstellata will be made aware of the plant's locations and of the
importance of protecting the plant and its habitat even though critical
habitat is not being designated. No additional benefits would result
from a determination of critical habitat. If listed, habitat protection
for this plant would be accomplished through the section 7 ``jeopardy''
standard and section 9 prohibitions against take.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing encourages and
results in conservation actions by Federal, State, and private
agencies, groups, and individuals. The Endangered Species Act provides
for possible land acquisition and cooperation with the States and
requires that recovery actions be carried out for all listed species.
Such actions are initiated by the Service following listing. The
protection required of Federal agencies and the prohibitions against
taking are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) requires Federal agencies to confer
informally with the Service on any action that is likely to jeopardize
the continued existence of a proposed species or result in the
destruction or adverse modification of proposed critical habitat. If a
species is subsequently listed, section 7(a)(2) requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of such a species
or to destroy or adversely modify its critical habitat. If a Federal
action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with the
Service.
All Arabis perstellata populations are on privately owned land or
in road rights-of-way. No current Federal actions have been identified
that would affect these plants. However, Federal involvement associated
with such actions as road construction may have limited potential for
affecting these plants in the future.
The Act and its implementing regulations found at 50 CFR 17.61,
17.62, and 17.63 set forth a series of general prohibitions and
exceptions that apply to all endangered plants. All trade prohibitions
of section 9(a)(2) of the Act, implemented by 50 CFR 17.61, would
apply. These prohibitions, in part, make it illegal for any person
subject to the jurisdiction of the United States to import or export,
transport in interstate or foreign commerce in the course of a
commercial activity, sell or offer for sale this species in interstate
or foreign commerce, or to remove and reduce to possession the species
from areas under Federal jurisdiction. In addition, for endangered
plants, the 1988 amendments (Pub. L. 100-478) to the Act prohibit the
malicious damage or destruction on Federal lands and the removal,
cutting, digging up, or damaging or destroying of endangered plants in
knowing violation of any State law or resolution, including State
criminal trespass law. Certain exceptions apply to agents of the
Service and State conservation agencies. The Act and 50 CFR 17.62 and
17.63 also provide for the issuance of permits to carry out otherwise
prohibited activities involving endangered species under certain
circumstances. It is anticipated that few trade permits would ever be
sought or issued because the species is not common in cultivation or in
the wild. Requests for copies of the regulations on listed plants and
inquiries regarding prohibitions and permits may be addressed to the
Office of Management Authority, U.S. Fish and Wildlife Service, 4401 N.
Fairfax Drive, Room 420-C, Arlington, Virginia 22203 (703/358-2104).
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned government
agencies, the scientific community, industry, or any other interested
party concerning these proposed rules are hereby solicited. Comments
particularly are sought concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to Arabis perstellata;
(2) The location of any additional populations of Arabis
perstellata and the reasons why any habitat should or should not be
determined to be critical habitat as provided by section 4 of the Act;
(3) Additional information concerning the range and distribution of
this species; and
(4) Current or planned activities in the subject area and their
possible impacts on Arabis perstellata.
Final promulgation of regulations on Arabis perstellata will take
into consideration the comments and any additional information received
by the Service, and such communications may lead to the adoption of a
final regulation that differs from this proposal.
The Endangered Species Act provides for a public hearing on this
proposal, if requested. Requests must be filed within 45 days of the
date of this proposal. Such requests must be made in writing and should
be addressed to the Field Supervisor, Asheville Field Office, U.S. Fish
and Wildlife Service, 330 Ridgefield Court, Asheville, North Carolina
28806.
National Environmental Policy Act
The Fish and Wildlife Service has determined that an Environmental
Assessment, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Endangered
Species Act of 1973, as amended. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
References Cited
Branson, B. A., D. F. Harker, Jr., J. M. Baskin, M. E. Medley, D. L.
Batch, M. L. Warren, Jr., W. H. Davis, W. C. Houtcooper, B. Monroe,
Jr., L. R. Phillippe, and P. Cupp. 1981. Endangered, threatened, and
rare animals and plants of Kentucky. Transactions of the Kentucky
Academy of Science 42:77-89.
Braun, E. L. 1940. New plants from Kentucky. Rhodora 42:47-49.
Collins, J. L., H. R. DeSelm, A. M. Evans, R. Kral, and B. E.
Wofford. 1978. The rare vascular plants of Tennessee. Journal of the
Tennessee Academy of Science 53:128-133.
Fernald, M. L. 1946. Identification and reidentifications of North
American Plants. Rhodora 48:207-216.
Jones, R. L. 1991. Status Survey Report on Arabis perstellata var.
perstellata. Unpublished report to the Asheville Field Office, U.S.
Fish and Wildlife Service, Asheville, North Carolina. 94 pp.
Kartesz, J., and R. Kartesz. 1980. A synonymized checklist of the
vascular flora of the United States, Canada, and Greenland.
University of North Carolina Press, Chapel Hill, North Carolina.
Rollins, R. 1960. Arabis perstellata in Tennessee. Rhodora 62:242-
244.
Somers, P. 1989. Revised list of the rare plants of Tennessee.
Journal of the Tennessee Academy of Science 64:179-184.
Tennessee Department of Conservation, Division of Ecological
Services. 1987. The rare plant protection and conservation act of
1985. Nashville, Tennessee.
Warren, M. L., Jr., W. H. Davis, Branson, R. R. Hannan, M. Evans, D.
L. Batch, B. D. Anderson, B. Palmer-Hall, Jr., J. R. MacGregor, R.
R. Cicerello, R. Athey, B. A. Branson, G. J. Fallo, B. M. Burr, M.
E. Medley, and J. M. Baskin. 1986. Endangered, threatened, and rare
plants and animals of Kentucky. Transactions of the Kentucky Academy
of Science 47:84-97.
Author
The primary author of these proposed rules is Mr. J. Allen
Ratzlaff, Asheville Field Office, U.S. Fish and Wildlife Service, 330
Ridgefield Court, Asheville, North Carolina 28806 (704/665-1195, Ext.
229).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Proposed Regulations Promulgation
Accordingly, the Service proposes to amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Sec. 17.12(h) is amended by adding the following, in
alphabetical order, under Brassicaceae, to the List of Endangered and
Threatened Plants, to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Species
----------------------------------- Historic range Status When listed Critical Special rules
Scientific name Common name habitat
----------------------------------------------------------------------------------------------------------------
Brassicaceae--Mu
stard family:
* * * * * * *
Arabis Rock cress...... U.S.A. (TN, KY). E NA .............. NA
perstellata.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Dated: December 2, 1993.
Richard N. Smith,
Acting Director, Fish and Wildlife Service
[FR Doc. 93-32077 Filed 12-30-93; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 93-32053 Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Three Puerto Rican Plants
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32053]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AC17
Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for Three Puerto Rican Plants
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Service proposes to determine Mitracarpus maxwelliae,
Mitracarpus polycladus, and Eugenia woodburyana to be endangered
species pursuant to the Endangered Species Act (Act) of 1973, as
amended. M. maxwelliae and E. woodburyana are endemic to Puerto Rico.
M. polycladus has been reported from only one other island, Saba, in
the Lesser Antilles. Both species of Mitracarpus are small shrubs that
are each limited in distribution to one area in Guanica, located in
southwestern Puerto Rico. E. woodburyana is known only from
approximately 45 individuals at three locations in southwestern Puerto
Rico. These species are variously threatened by road construction,
recreational activities, wildfires, and land clearing associated with
development for agriculture and other purposes. This proposal, if made
final, would provide M. maxwelliae, M. polycladus and E. woodburyana
with the Federal protection and recovery provisions afforded by the Act
for listed species.
DATES: Comments from all interested parties must be received by March
4, 1994. Public hearing requests must be received by February 17, 1994.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, Caribbean Field Office, U.S. Fish and
Wildlife Service, P.O. Box 491, Boqueron, Puerto Rico 00622. Comments
and materials received will be available for public inspection, by
appointment, during normal business hours at this office, and at the
Service's Southeast Regional Office, suite 1282, 75 Spring Street, SW.,
Atlanta, Georgia 30303.
FOR FURTHER INFORMATION CONTACT: Ms. Susan Silander at the Caribbean
Field Office address (809/851-7297) or Mr. Dave Flemming at the Atlanta
Regional Office address (404/331-3580).
SUPPLEMENTARY INFORMATION:
Background
Mitracarpus maxwelliae was discovered on March 8, 1925, by
Nathaniel L. Britton on a limestone hill in the municipality of
Guanica, Puerto Rico. The site was later rediscovered by Alain Liogier
in 1982 and again by George R. Proctor and Miguel Canals in 1987. The
species has never been found at any other location but the type
locality. At this locality, it is found along an unpaved road, growing
on dry exposed gravel. Approximately 1,443 plants, including mature
flowering individuals and seedlings, were counted within an area of
about 7,500 square meters (Proctor 1991a).
Mitracarpus maxwelliae is a low, densely-branching, moundlike shrub
that may reach approximately 20 centimeters in height. The somewhat
woody branches are striate and sharply 4-angled. The leaves are
opposite, sessile, linear or linear-lanceolate, densely scabrous, and
from 1 to 3 centimeters long and 2 to 5 millimeters wide. The flower
heads are terminal, dense, sub-globose, and from .8 to 1.3 centimeters
in diameter. The corolla is white, narrowly funnelform, minutely
glandular-papillose, 5 to 6 millimeters long. The capsule is about 1.5
millimeter in diameter, opening by a transverse circular split at about
the middle. The seeds are ellipsoid, brownish-black, and 1.2
millimeters long and .8 millimeter wide.
Mitracarpus polycladus was first discovered growing on coastal
rocks near Cana Gorda, Guanica, Puerto Rico, in 1886 by Paul Sintenis.
It was also located on the island of Saba in the lesser Antilles by the
Dutch botanist Boldingh. Today it is still known only from these two
locations, where it grows in crevices and soil pockets of coastal rocks
in arid areas. Exact numbers of individuals have been difficult to
estimate due to extreme drought conditions in recent years (Proctor
1991b).
Mitracarpus polycladus is a suffrutescent perennial. It is branched
near the base, and the erect or spreading stems may reach up to 45
centimeters in height. The branches are 4-angled and glabrous. Leaves
are opposite, linear to linear-lanceolate, 2 to 4.5 centimeters long,
.3 to .5 centimeters wide, glabrous and often with an inrolled margin
and decurrent base. The inflorescence is terminal and capitate, 8 to 13
millimeters in diameter, many flowered and subtended by 3 bract-like
leaves. The corolla is white, about 5 millimeters long, with ovate
leaves. The seed capsule is 1.5 millimeter in diameter, splitting open
transversely below the middle, and contains black seeds.
Eugenia woodburyana, a small evergreen tree, is endemic to Puerto
Rico and currently known from only the Sierra Bermeja in the
municipalities of Cabo Rojo and Lajas and from the Guanica Commonwealth
Forest in Guanica, all in southwestern Puerto Rico. An additional
individual has been reported from the Cabo Rojo National Wildlife
Refuge, in Cabo Rojo, adjacent to the Sierra Bermeja. Approximately 45
individuals are known from these three locations. The species was only
recently discovered and described by Alain Liogier (Liogier 1980).
Eugenia woodburyana may reach 6 meters in height. The leaves are
opposite, obovate, pilose on both sides, glandular-punctate below, and
from 1.5 to 2 centimeters long and 1 to 1.5 centimeters wide. The
inflorescence is axillary, 2 to 5 flowered and with a peduncle 1 to 3
millimeters long. The calyx is 4-lobed and the petals are white, 4
millimeters long and 3.5 millimeters wide. The striking fruit is red
upon maturity, 8-winged and 2 centimeters in diameter.
Mitracarpus maxwelliae and M. polycladus were recommended for
Federal listing in a report prepared by the Smithsonian Institution as
directed by section 12 of the Endangered Species Act of 1973. The
report was presented to Congress in 1975 as House Document No. 94-51.
The species were subsequently included among the plants being
considered as endangered or threatened by the Service, as published in
the Federal Register notice of review dated December 15, 1980 (45 FR
82480); the November 28, 1983 update (48 FR 53680), the revised notice
of September 27, 1985 (50 FR 39526), and the February 21, 1990 (55 FR
6184) notice of review. In the February 21, 1990, notice, M. maxwelliae
was designated as a category 1 species (a species for which the Service
has substantial information supporting the appropriateness of proposing
to list them as endangered or threatened) and M. polycladus as a
category 2 species (a taxon for which there is evidence of
vulnerability, but for which there was not enough data to support
listing). Eugenia woodburyana was included as a category 2 candidate
for listing in the September 30,1993, plant notice of review. It has
been included in the Center for Plant Conservation's Report on Rare
Plants in Puerto Rico (Center for Plant Conservation 1992) as a taxon
that may become extinct within the next 10 years. All three species are
considered to be critical plants by the Natural Heritage Program of the
Puerto Rico Department of Natural Resources (Department of Natural
Resources 1993).
Based on status survey reports completed in 1991, and in
conjunction with other recent field work, the Service recently
reclassified Mitracarpus polycladus and Eugenia woodburyana as category
1 candidates.
Section 4(b)(3)(B) of the Act, as amended in 1982, requires the
Secretary to make findings on certain pending petitions within 12
months of their receipt. Section 2(b)(1) of the 1982 Amendments further
requires that all petitions pending on October 13, 1982, be treated as
having been newly submitted on that date. This was the case for
Mitracarpus maxwelliae and M. polycladus, because the Service had
accepted the 1975 Smithsonian report as a petition. In each October
from 1983 through 1992, the Service has found that the petitioned
listing of these species was warranted but precluded by other listing
actions of a higher priority, and that additional data on vulnerability
and threats were still being gathered. This proposed rule constitutes
the final 1-year finding for these two species in accordance with
section 4(b)(3)(B)(ii) of the Act.
Summary of Factors Affecting the Species
Section 4(a)(1) of the Endangered Species Act (16 U.S.C. 1531 et
seq.) and regulations (50 CFR part 424) promulgated to implement the
listing provisions of the Act set forth the procedures for adding
species to the Federal lists. A species may be determined to be
endangered or threatened due to one or more of the five factors
described in section 4(a)(1). These factors and their application to
Mitracarpus maxwelliae Britton & Wilson, M. polycladus Urban and
Eugenia woodburyana Alain are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
In the Sierra Bermeja, Eugenia woodburyana is found on privately
owned land subject to intense pressure for agricultural, rural and
tourist development. The land is currently being cleared for grazing by
cattle and goats. Adjacent land is being subdivided for sale in small
farms, some destined for tourist and urban development. All three
species are also found within the Guanica Commonwealth Forest; however,
Mitracarpus maxwelliae and M. polycladus are found along infrequently
used roadways where they may be adversely impacted in the future. Any
road improvement, widening, or increase in traffic along these roads
would result in the loss of a significant portion of the only known
populations. The sites of these two species are near preferred
recreational areas, heavily utilized during the summer months.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Taking for these purposes has not been a documented factor in the
decline of these species.
C. Disease or Predation
Disease and predation have not been documented as factors in the
decline of these species.
D. The Inadequacy of Existing Regulatory Mechanisms
The Commonwealth of Puerto Rico has adopted a regulation that
recognizes and provides protection for certain Commonwealth listed
species. However, Mitracarpus maxwelliae, Mitracarpus polycladus and
Eugenia woodburyana are not yet on the Commonwealth list. Federal
listing would provide immediate protection and, if the species are
ultimately placed on the Commonwealth list, enhance their protection
and possibilities for funding needed research.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
One of the most important factors affecting the continued survival
of these species is their limited distribution. Because so few
individuals are known to occur in a limited area, the risk of
extinction is extremely high. Wildfires are a frequent occurrence in
this extremely dry portion of southwestern Puerto Rico, particularly in
the coastal roadside areas of Guanica where Mitracarpus maxwelliae and
Mitracarpus polycladus are found.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by these species in determining to propose this
rule. Based on this evaluation, the preferred action is to list
Mitracarpus maxwelliae, M. polycladus and Eugenia woodburyana as
endangered. M. maxwelliae and M. polycladus are known from only one
location in the Guanica area of southwestern Puerto Rico. In this area
they are threatened by road construction, recreational activities and
wildfires. E. woodburyana is known from only approximately 45
individuals at three locations in southwestern Puerto Rico.
Deforestation for rural, agricultural, and tourist development are
imminent threats to the survival of the species. Therefore, endangered
rather than threatened status seems an accurate assessment of the
species' condition. The reasons for not proposing critical habitat for
these species are discussed below in the ``Critical Habitat'' section.
Critical Habitat
Section 4(a)(3) of the Act, as amended, requires that, to the
maximum extent prudent and determinable, the Secretary propose critical
habitat at the time the species is proposed to be endangered or
threatened. Title 50, part 424 of the Code of Federal Regulations,
Sec. 424.12(1) states that designation of critical habitat is not
prudent when one or both of the following situations exist: (i) The
species is threatened by taking or other human activity, and
identification of critical habitat can be expected to increase the
degree of such threat to the species, or (ii) Such designation of
critical habitat would not be beneficial to the species. Both
situations apply to Mitracarpus maxwelliae, Mitracarpus polycladus and
Eugenia woodburyana.
Critical habitat would not be beneficial in terms of adding
additional protection for the species under section 7 of the Act.
Regulations promulgated for the implementation of section 7 provide for
both a ``jeopardy'' standard and a ``destruction or adverse
modification'' of critical habitat standard. Because of the highly
limited distribution of these species and their precarious status, any
Federal action that would destroy or have any significant adverse
affect on their habitat would likely result in a jeopardy biological
opinion under section 7. Under these conditions, no additional benefits
would accrue from designation of critical habitat that would not be
available through listing alone.
The Service also finds that designation of critical habitat is not
prudent for these species due to the potential for taking. The number
of individuals of Mitracarpus maxwelliae, Mitracarpus polycladus and
Eugenia woodburyana is sufficiently small that vandalism and collection
could seriously affect the survival of the species. Publication of
critical habitat descriptions and maps in the Federal Register would
increase the likelihood of such activities. These species are not
protected by Commonwealth law and, since they do not occur on Federal
lands, would receive no protection from taking under the Endangered
Species Act. The Service believes that Federal involvement in the areas
where these plants occur can be identified without the designation of
critical habitat. All involved parties and landowners have been
notified of the location and importance of protecting these species'
habitat. Protection of these species' habitat will also be addressed
through the recovery process and through the section 7 jeopardy
standard.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing encourages and
results in conservation actions by Federal, Commonwealth, and private
agencies, groups and individuals. The Endangered Species Act provides
for possible land acquisition and cooperation with the Commonwealth,
and requires that recovery actions be carried out for all listed
species. Such actions are initiated by the Service following listing.
The protection required of Federal agencies and the prohibitions
against certain activities involving listed plants are discussed, in
part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) requires Federal agencies to confer
informally with the Service on any action that is likely to jeopardize
the continued existence of a proposed species or result in destruction
or adverse modification of proposed critical habitat. If a species is
subsequently listed, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
The only currently known Federal involvement is through the
occurrence of Eugenia woodburyana on the Cabo Rojo National Wildlife
Refuge. Other Federal involvement may occur in the future through the
funding of housing (Farmer's Home Administration or Housing and Urban
Development) or funding utilized for the management of the Guanica
Commonwealth Forest (U.S. Department of Agriculture, Forest Service).
The Act and its implementing regulations found at 50 CFR 17.61,
17.62, and 17.63 set forth a series of general prohibitions and
exceptions that apply to all endangered plants. All trade prohibitions
of section 9(a)(2) of the Act, implemented by 50 CFR 17.61, apply.
These prohibitions, in part, make it illegal for any person subject to
the jurisdiction of the United States to import or export any
endangered plant, transport it in interstate or foreign commerce in the
course of commercial activity, sell or offer it for sale in interstate
or foreign commerce, or remove it from areas under Federal jurisdiction
and reduce it to possession. In addition, for endangered plants, the
1988 amendments (Pub. L. 100-478) to the Act prohibit the malicious
damage or destruction on Federal lands and the removal, cutting,
digging up, or damaging or destroying of endangered plants in knowing
violation of any Commonwealth law or regulation, including Commonwealth
criminal trespass law. Certain exceptions can apply to agents of the
Service and Commonwealth conservation agencies.
The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of
permits to carry out otherwise prohibited activities involving
endangered species under certain circumstances. It is anticipated that
few trade permits for these three species will ever be sought or
issued, since the species are not known to be in cultivation and are
uncommon in the wild. Requests for copies of the regulations on listed
plants and inquiries regarding them may be addressed to the Office of
Management Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax
Drive, room 432, Arlington, Virginia 22203 (703/358-2104).
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
any comments or suggestions from the public, other concerned
governmental agencies, the scientific community, industry, or any other
interested party concerning any aspect of this proposed rule are hereby
solicited. Comments particularly are sought concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to Mitracarpus maxwelliae, Mitracarpus
polycladus and Eugenia woodburyana;
(2) The location of any additional populations of these three
species, and the reasons why any habitat should or should not be
determined to be critical habitat as provided by section 4 of the Act;
(3) Additional information concerning the range and distribution of
these species; and
(4) Current or planned activities in the subject areas and their
possible impacts on these three species.
Final promulgation of the regulation on Mitracarpus maxwelliae,
Mitracarpus polycladus and Eugenia woodburyana will take into
consideration the comments and any additional information received by
the Service, and such communications may lead to the adoption of a
final regulation that differs from this proposal.
The Endangered Species Act provides for a public hearing on this
proposal, if requested. Requests must be filed within 45 days of the
proposal. Such requests must be made in writing and addressed to the
Field Supervisor, Caribbean Field Office, U.S. Fish and Wildlife
Service, P.O. Box 491, Boqueron, Puerto Rico 00622.
National Environmental Policy Act
The Fish and Wildlife Service has determined that an Environmental
Assessment, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Endangered
Species Act of 1973, as amended. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
References Cited
Center for Plant Conservation. 1992. Report on the rare plants of
Puerto Rico. Missouri Botanical Garden, St. Louis, Missouri.
Department of Natural Resources. 1993. Natural Heritage Program
status information on Mitracarpus maxwelliae, Mitracarpus polycladus
and Eugenia woodburyana. San Juan, Puerto Rico.
Liogier, Alain H. 1980. Novitates Antillanae. VIII. Phytologia
47(3):167-198.
Proctor, G. R. 1991a. Status report on Mitracarpus maxwelliae
Britton & Wilson. In Publicacion Cientifica Miscelanea No. 2,
Departamento de Recursos Naturales de Puerto Rico. 196 pp.
Proctor, G. R. 1991b. Status report on Mitracarpus polycladus Urban.
In Publicacion Cientifica Miscelanea No. 2, Departamento de Recursos
Naturales de Puerto Rico. 196 pp.
Author
The primary author of this proposed rule is Ms. Susan Silander,
Caribbean Field Office, U.S. Fish and Wildlife Service, P.O. Box 491,
Boqueron, Puerto Rico 00622 (809/851-7297).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Sec. 17.12(h) is amended by adding the following, in
alphabetical order, under Myrtaceae and Rubiaceae, to the list of
Endangered and Threatened Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Species
----------------------------------- Historic range Status When listed Critical Special rules
Scientific name Common name habitat
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Myrtaceae--Myrtl
e family:
Eugenia None............ U.S.A. (PR)..... E .............. NA NA
woodburyana.
* * * * * * *
Rubiaceae--Coffe
e family:
* * * * * * *
Mitracarpus None............ U.S.A. (PR)..... E .............. NA NA
maxwelliae.
Mitracarpus None............ U.S.A. (PR)..... E .............. NA NA
polycladus.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Dated: November 22, 1993.
Richard N. Smith,
Acting Deputy Director, Fish and Wildlife Service.
[FR Doc. 93-32053 Filed 12-30-93; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 93-32052 Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for the Puerto Rican Broad-winged Hawk and the Puerto Rican Sharp-shinned Hawk
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32052]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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DEPARTMENT OF THE INTERIOR
50 CFR Part 17
RIN 1018-AC12
Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for the Puerto Rican Broad-winged Hawk and the Puerto
Rican Sharp-shinned Hawk
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Service proposes to determine the Puerto Rican broad-
winged hawk (Buteo platypterus brunnescens) and the Puerto Rican sharp-
shinned hawk (Accipiter striatus venator) to be endangered pursuant to
the Endangered Species Act (Act) of 1973, as amended. These uncommon
woodland raptors are restricted to montane, government-owned forests
along the Cordillera Central, Sierra de Cayey and Sierra de Luquillo.
There are approximately 155 sharp-shinned hawks and 124 broad-winged
hawks island-wide. Both species are currently threatened by: Timber
harvest and management practices in the forests; road construction in
relation to timbering and recreational activities; increase in numbers
of recreational facilities, and the disturbance associated with public
use; mortality and habitat destruction from hurricanes; the lack of
comprehensive management plans for the Commonwealth forests; possible
loss of genetic variation due to low population levels: and the
potential for illegal shooting. The Puerto Rican sharp-shinned hawk is
also affected by warble fly parasitism. This proposal, if made final,
would provide these species with the Act's protection and recovery
provisions. The Service seeks data and comments from the public on this
proposal.
DATES: Comments from all interested parties must be received by May 3,
1994. Public hearing requests must be received by February 17, 1994.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, U.S. Fish and Wildlife Service, Caribbean
Field Office, P.O. Box 491, Boqueron, Puerto Rico 00622. Comments and
materials received will be available for public inspection, by
appointment, during normal business hours, at the Caribbean Field
Office and at the Service's Southeast Regional Office, suite 1282, 75
Spring Street, SW., Atlanta, Georgia 30303.
FOR FURTHER INFORMATION CONTACT: Ms. Marelisa Rivera at the Caribbean
Field Office address (809/851-7297), or Mr. Dave Flemming at the
Atlanta Regional Office address (404/331-3583).
SUPPLEMENTARY INFORMATION:
Background
The broad-winged hawk (Buteo platypterus) was first reported in
Puerto Rico by Gundlach (1878). He reported this species as ``common''
in the ``interior'' of Puerto Rico. Stahl (1883) reported the species
as ``transient''. In the first half of the 20th century, the species
was not reported by other naturalists that visited the island (Bowdish
1902, Wetmore 1914, and Danforth 1931). Wetmore (1927) believed the
species extinct. Danforth and Smyth (1935) collected a specimen in
Luquillo (Caribbean National Forest) and described it as a distinct
resident subspecies, the Puerto Rican broad-winged hawk (Buteo
platypterus brunnescens). Danforth (1936) reported sightings of broad-
winged hawks from Utuado. Leopold (1963) reported the species from
Luquillo, Utuado and Maricao forests.
The Puerto Rican broad-winged hawk is a dark chocolate brown,
small-sized hawk that measures approximately 39 centimeters (15.5
inches). It is smaller than Buteo platypterus platypterus but larger
than the Lesser Antillean subspecies. This is the darkest subspecies of
the broad-winged hawk. In adults, the tail, broadly banded with black
and white, and the rufous breast are characteristic. Immature birds
have dark bars on the breast and lack the distinctive tail bands of the
adult. Broadwings flap more than the similar but larger red-tailed hawk
(Raffaele 1989). Knowledge of the biology of the Puerto Rican broad-
winged hawk is limited. Snyder et al. (1987) conducted food-habit
studies on one of the three nests found in the Caribbean National
Forest in 1976 and one nest found in Rio Abajo in 1978. The prey types
taken included centipedes, frogs, lizards, mice, rats and birds
(including some as large as 200 grams). Studies of breeding biology,
habitat requirements and other aspects of this species' biology are not
available in the literature.
The Puerto Rican broad-winged hawk is an uncommon and extremely
local resident. Extant populations are restricted to montane habitats
of three forests: Rio Abajo Commonwealth Forest, Carite Commonwealth
Forest and Caribbean National Forest. Breeding has not been documented
in the Carite forest (Hernandez 1980, Snyder et al. 1987). In the mid-
1980's, the population in the Caribbean National Forest was estimated
to be 40-60 individuals and 15-20 breeding pairs (Santana and Temple
1984, Snyder et al. 1987). The broad-winged hawks were more often seen
in the eastern side of the Caribbean National Forest, and the tabonuco
and palo colorado forest types were reported to be the preferred
habitats for the species (Wiley and Bauer 1985). In 1992, 12 broad-
winged hawks were sighted in the Caribbean National Forest and the
population was estimated at 22 individuals (Delannoy 1992). These
individuals were observed to be clustered in the north-central part of
the forest within the subtropical wet forest and subtropical rain
forest life zones, where the tabonuco is the dominant forest type.
Very little is known about the Rio Abajo and Carite forest
populations. However, it appears that the existence of the Rio Abajo
population was known by Danforth (1936) and Leopold (1963) since they
both reported sightings of broad-winged hawks from Utuado. Snyder et
al. (1987) believed that the Rio Abajo forest sustains not more than 50
individuals. Delannoy (1992) reported 26 broad-winged hawks, or an
estimated population of 52 individuals, in the Rio Abajo forest. The
Puerto Rican broad-winged hawk was unknown from the Carite forest until
1980, when the existence of a resident population present year-round
was reported (Hernandez 1980). In 1992, 20 broad-winged hawks were
censused in the Carite forest and a population of 22 individuals was
estimated (Delannoy 1992). In the Carite forest the species has been
reported from the elfin, caimitillo, granadillo, tabonuco, and slope
forest types (Hernandez 1980, Delannoy 1992).
The 206.4 square kilometers censused in three forests (Rio Abajo,
Carite and Caribbean National Forest) in 1992 yielded a count of 58
broad-winged hawks, and a total population estimate of 124 individuals
(Delannoy 1992). Sightings of the broad-winged hawk have been reported
from other areas, such as Cayey (next to the Carite forest), Utuado,
Jayuya, Adjuntas, Villalba, and the Maricao and Toro Negro forests
(Leopold 1963, Perez-Rivera and Cotte-Santana 1977). Nevertheless,
Delannoy (1991) established that the Maricao and Toro Negro forests do
not have resident populations. Broad-winged hawks have been searched
for, but not sighted, in upland forested habitats in Utuado, Jayuya,
Adjuntas, Orocovis, and Barranquitas (Delannoy 1992).
The sharp-shinned hawk (Accipiter striatus) is a polytypic species
with nine subspecies distributed in the western hemisphere, from Alaska
to Canada south to Argentina and to the West Indies (Cuba, Hispaniola
and Puerto Rico) (Wattel 1973). The Puerto Rican sharp-shinned hawk was
first discovered in 1912 in the Maricao Commonwealth Forest, and
described as a distinct subspecies, Accipiter striatus venator (Wetmore
1914).
The Puerto Rican sharp-shinned hawk is a small hawk measuring
approximately 28-33 centimeters (11-13 inches). The dark slate gray
upper parts and heavily barred rufous underparts of the adults are
distinctive. Immatures are brown above and heavily streaked below. It
has a short, squared tail, often appearing notched when folded, and a
small head and neck. In flight, the short, rounded wings and long,
narrow tail are characteristic (Raffaele 1989).
Extant breeding populations of the Puerto Rican sharp-shinned hawk
were located in the mountain forest of the Maricao Commonwealth Forest,
Toro Negro Commonwealth Forest, Guilarte Commonwealth Forest, Carite
Commonwealth Forest and Caribbean National Forest (Cruz and Delannoy
1986). Sixty individuals were counted in island-wide surveys conducted
in 1983, and a breeding density of .73 hawks/km\2\ was estimated (Cruz
and Delannoy 1986). In 1985, 72 individuals were counted and a breeding
population of .76 hawk/km\2\ (230-250 island-wide) were estimated in
island-wide surveys (Cruz and Delannoy 1986). In 1992, 285.6 square
kilometers censused yielded 82 sharp-shinned hawks; 40 were counted in
Maricao, 30 in Toro Negro, 10 in Carite and 2 in the Caribbean National
Forest. An overall population of 129 individuals has been estimated for
these forests (Delannoy 1992). Although the Guilarte forest population
was not censused in 1992, a population of 25 individuals was estimated
for the forest in 1985 (Cruz and Delannoy 1986).
Studies on breeding and nesting habitat of this species, conducted
by Cruz and Delannoy (1986) showed that the sharp-shinned hawk
population in Maricao nests in both natural and modified (Calophyllum
plantation) habitats. Plantation nest sites tended to have large canopy
trees and fewer understory trees than natural forest nest sites. Sharp-
shinned hawks appear to select plantation and natural forest nest sites
with similar vegetative structure and topography. Results suggested
that special vegetation structural requirements (closed canopies and
dense stands) are sought by the Puerto Rican sharp-shinned hawks in the
selection of nest sites in Maricao and apparently in other parts of its
range in Puerto Rico (Cruz and Delannoy 1986). Furthermore, these
authors reported low reproductive success, high desertion of eggs, and
high nestling mortality due to parasitism by the warble fly Philornis
spp.
The center of sharp-shinned hawk courtship and territorial
activities in Maricao forest was located in the north-central and
eastern parts, within the subtropical lower montane wet forest and
subtropical wet forest life zones. In the Carite forest, territorial
and courtship activities occurred in the northeastern and north-central
parts, within the caimitillo-granadillo forest types (Delannoy 1992).
In Toro Negro, these activities took place in the elfin woodland,
sierra palm, caimitillo-granadillo and tabonuco forest types. In the
Caribbean National Forest, the only two sharp-shinned hawks sighted (a
solitary territorial pair) were detected in the south-central part of
the forest, confined to the palo colorado forest type of the lower
montane forest life zone (Delannoy 1992).
Although the sharp-shinned hawk was previously known from the karst
region of Rio Abajo and Guajataca Commonwealth Forests, Cruz and
Delannoy (1986) did not find any evidence of its presence in these
areas. Fossil evidence indicates that the species was once more
widespread in the karst region (Wetmore 1922). Sharp-shinned hawks have
been searched for and not sighted in Cambalache, Vega, Susua, and
Guanica forests (Cruz and Delannoy 1986).
On November 24, 1980, the Service received a petition from Dr.
Warren B. King from the International Council for Bird Preservation
requesting that the Puerto Rican broad-winged hawk and the Puerto Rican
sharp-shinned hawk (and other bird species) be added to the List of
Endangered and Threatened Wildlife. On May 12, 1981, the Service
published a notice of petition acceptance and status review in the
Federal Register (46 FR 26464).
In the case of any petition accepted by the Service as containing
substantial information, Section 4(b)(3) of the Endangered Species Act
(16 U.S.C. 1531 et seq.), as amended in 1982, requires that a
subsequent finding be made within 12 months as to whether the measure
is warranted, not warranted, or warranted but precluded by higher
priority listing actions. In regard to the Puerto Rican broad-winged
hawk, the Service has made administrative findings of ``warranted but
precluded'' each year, beginning in October of 1983, as required by the
Act. In the case of the Puerto Rican sharp-shinned hawk, a status
survey completed in 1986 resulted in a final petition finding of ``not
warranted'' that was announced in the Federal Register of April 25,
1990 (55 FR 17475).
In the Service's notice of review for vertebrate candidates
published in the Federal Register of December 30, 1982 (47 FR 58454)
and September 18, 1985 (50 FR 37958), both hawks were included as
category 2 species, i.e., taxa for which there is information to
indicate that listing may be appropriate, but for which there is
insufficient data to support a listing proposal. In the animal notice
of review published January 6, 1989 (54 FR 554), the Puerto Rican
sharp-shinned hawk was moved to category 3C based on status information
gathered in 1986. Category 3C taxa are those that do not presently
qualify for the Act's protection due to absence of significant threats.
The Puerto Rican broad-winged hawk was retained in category 2 for the
1989 notice of review and for the subsequent notice published November
21, 1991 (56 FR 58804).
Status surveys conducted in 1991 and 1992 indicated that both
species have experienced recent population declines, exist in low
numbers, have restricted distribution and currently face significant
threats. Based on this information, the Service recently that elevated
both hawks to category 1 and is now proposing them for endangered
status. The current proposed rule represents the final finding on the
petitioned action for the Puerto Rican broad-winged hawk.
Summary of Factors Affecting the Species
Section 4(a)(1) of the Endangered Species Act and regulations (50
CFR Part 424) promulgated to implement the listing provisions of the
Act set forth the procedures for adding species to the Federal Lists. A
species may be determined to be an endangered or threatened species due
to one or more of the five factors described in Section 4(a)(1). These
factors and their application to the Puerto Rican broad-winged hawk
(Buteo platypterus brunnescens) and the Puerto Rican sharp-shinned hawk
(Accipiter striatus venator) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
The Puerto Rican broad-winged hawk and the Puerto Rican sharp-
shinned hawk are uncommon and extremely local residents. Extant
populations of the broad-winged hawk and the sharp-shinned hawk are
restricted to three and five montane forests, respectively. The
destruction and modification of forested habitats in Puerto Rico may be
one of the most significant factors affecting the numbers and
distribution of these hawk species. The patchy distribution of both
species may have resulted from the fragmentation of forested habitats.
During the first half of the 20th century, forested areas were
drastically reduced for intensive agricultural uses. Only small areas
of the montane forests remained. In the last half of this century early
secondary forests have developed in areas that are no longer under
intensive cultivation, and these secondary forests connect patches of
more mature forests that were previously isolated. Nevertheless, both
hawk species are restricted to the mature montane forests and have not
been observed in these secondary forests (Delannoy, pers. comm.). Both
species were searched for, but not sighted, in other upland forested
habitats in central parts of Puerto Rico.
Extant populations of these species occur in low numbers. The total
population estimate of 124 broad-winged hawks island-wide is very low.
Broad-winged hawks have experienced a local population decline of
approximately 50 percent in the Caribbean National Forest (Delannoy
1992). Total population numbers are significantly low in both the
Carite and Rio Abajo forests. The sharp-shinned hawk has experienced a
60 percent decline in the Carite forest and 93 percent decline in the
Caribbean National Forest (Delannoy 1992).
Timber harvest and management practices that would result in a
reduction in numbers or in the diminishing of habitat quality of
species already limited in their abundance and distribution could be
detrimental. Cruz and Delannoy (1986) found that 50 percent of the
nesting areas in the Maricao forest were in plantations of maria
(Calophyllum brasiliense). They established that timber harvest and
management practices could have negative effects on sharp-shinned hawks
if vegetation structural features such as high stem density and canopy
closure were not maintained. Adequate nest site habitat in the Maricao
forest was considered to be in limited supply. Any activities that
modify required structural features of vegetation in sharp-shinned hawk
nesting areas could result in the reduction of the effective population
size. Sharp-shinned hawks showed a strong nest site tenacity and
returned year after year to the same nesting areas (Cruz and Delannoy
1986).
Road construction in the forests (related to timber programs and/or
recreational activities) could result in substantial habitat alteration
and fragmentation. Also, roads could provide a chronic source of human
disturbance, reducing habitat effectiveness for species with a strong
need for isolation. Roads could increase animal harvest and the
introduction of exotic fauna. Road construction and/or road repair have
been proposed in the Caribbean National Forest. In the Rio Abajo
forest, the construction of highway P.R. 10 from Arecibo to Ponce,
which has been under way for several years, could affect the broad-
winged hawk population. Delannoy (1992) documented, from the P.R.
Highway and Transportation Authority files, that approximately 2.5
kilometers of the P.R. 10 will enter and cut through forest land in the
northeastern corner, where high densities of broad-winged hawks were
detected. Bulldozer activities were reported less than 500 meters from
lookout sites in the forest. He estimated that approximately 3.79
hectares of apparently prime broad-winged hawk habitat will be
destroyed by the road.
Construction of recreational facilities has been proposed for the
western and northern sides of the Caribbean National Forest, areas
where both species occur. Such recreation facilities could potentially
eliminate habitat or bring human activities too close to preferred
nesting areas. Raptors are particularly sensitive to disturbance near
their nesting territories. In the Carite forest increasing pressure for
new recreation facilities has been identified (Delannoy 1992). In the
Maricao forest, Cruz and Delannoy (1986) found that nest failures
related to direct human harassment ranked third in importance among all
causes. Five nesting areas in Maricao forest are in, or less than 100
meters from, the camping and picnic areas. Some of the traditional
nesting areas for the Puerto Rican sharp-shinned hawk in the Toro Negro
forest lie near recreation facilities (Cruz and Delannoy 1986).
Increased pressure for recreation from a growing human population could
bring about frequent and regular human disturbance near nest sites.
Increased pressure for new right-of-way access to farms through the
Carite forest land, and the establishment of new communication
facilities, could also destroy prime habitat or bring human activities
too close to broad-winged hawks. Delannoy (1992) documented that
destruction of substantial caimitillo-granadillo habitat occurred in
the right-of-way access through Camino El Seis in the north-central
part of the Carite forest. This author also reported the establishment
of new communication facilities along an access road through sector
Farallon in the northwestern part of the forest where the highest
broad-winged hawk densities have been reported.
In the Maricao forest, the Puerto Rico Energy Power Authority has a
power substation located in the lower montane wet forest life zone, the
center of sharp-shinned hawk nesting habitat. Many kilometers of aerial
power lines run through forest lands. The access road for the
substation is located adjacent to sharp-shinned hawk habitat in the
subtropical wet forest life zone (Delannoy 1992). The construction of
this access road resulted in the destruction of approximately 2.6
hectares of sharp-shinned hawk habitat (Delannoy 1992). The
construction of new communication infrastructure or the enlargement of
the existing infrastructure could potentially eliminate important
sharp-shinned hawk habitat.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Taking for these purposes has not been a documented factor in the
decline of these species. Nevertheless, the size and the appearance of
these birds make them a potentially attractive target for some hunters.
C. Disease or Predation
The mortality of sharp-shinned hawk nestlings due to parasitism by
the warble fly Philornis spp. has been documented. Studies conducted in
Maricao forest attributed 61 percent of nestling mortality to Philornis
parasitism (Cruz and Delannoy 1986).
D. The Inadequacy of Existing Regulatory Mechanism
The Puerto Rican sharp-shinned hawk was designated by the
Commonwealth Department of Natural Resources as a threatened species in
1985. Existing Commonwealth regulations for the protection of
threatened and endangered species have not been effective at preventing
habitat destruction or alteration. The Puerto Rican broad-winged hawk
is not protected by Commonwealth regulations.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
One of the most important factors affecting these species in Puerto
Rico is their limited distribution and low numbers. The Puerto Rican
broad-winged hawk experienced a local population decline of
approximately 50 percent in the Caribbean National Forest (from 50
individuals in 1984 to 22 in 1992). The Puerto Rican sharp-shinned hawk
experienced a 40 percent population decline in a period of 7 years
(from 250 individuals in 1985 to 150 in 1992). Locally, the Carite
population experienced a 60 percent decline, and the Caribbean National
Forest population a 93 percent decline. Decline of both species has
been attributed to possible direct and indirect effects from hurricane
Hugo in 1989.
The extensive devastation from hurricanes may be particularly
detrimental to species with small population size and long generation
time, such as the broad-winged hawk and sharp-shinned hawk.
Additionally, there may also be a long-term reduction in effective
population size if the hawks prove to require habitat characteristics
not presently available in the storm-damaged forest.
The lack of comprehensive management plans for the Commonwealth
forests could be considered a serious threat for these species. In
absence of such plans, policy makers and managers lack basic
information on which to base decisions related to the best use and
management of forest resources.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by these two species in determining to propose
this rule. Based on this evaluation, the preferred action is to list
the Puerto Rican broad-winged hawk and the Puerto Rican sharp-shinned
hawk as endangered.
The Puerto Rican broad-winged hawk populations are extremely small
and limited to only three montane forests. Significant adverse effects
to this species or its habitat could drive it to extinction. The
potential for illegal shooting, increased human disturbance and the
loss of prime habitat in the forests constitute serious threats to the
continued survival of the species. The Puerto Rican sharp-shinned hawk
has experienced a 40 percent decline in a period of 7 years. The
potential for alteration of the species' habitat, human disturbance,
illegal shooting, and nestling parasitism by warble flies constitute
serious threats to the continued survival of the species. A decision to
determine only threatened status would not adequately reflect the
evident rarity and threats confronting these species. A decision to
take no action would exclude these species from benefits provided by
the Endangered Species Act. Endangered status is therefore appropriate.
Critical Habitat
Section 4(a)(3) of the Act, as amended, requires that, to the
maximum extent prudent and determinable, the Secretary propose critical
habitat at the time a species is proposed to be endangered or
threatened. The Service's regulations (50 CFR 424.12(a)(1)) state that
designation of critical habitat is not prudent when one or both of the
following situations exist: (1) The species is threatened by taking or
other activity and the identification of critical habitat can be
expected to increase the degree of threat to the species or (2) such
designation of critical habitat would not be beneficial to the species.
The Service finds that, in the case of the latter situation,
designation of critical habitat is not prudent for these species due to
lack of benefit.
Section 7(a)(2) and regulations codified at 50 CFR part 402 require
Federal agencies to ensure, in consultation with and with the
assistance of the Service, that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of
listed species or destroy or adversely modify their critical habitat,
if designated. (See ``Available Conservation Measures'' section for a
further discussion of Section 7.) As part of the development of this
proposed rule, the U.S. Forest Service and the Puerto Rico Department
of Natural Resources (DNR) were provided available information on the
distribution and threats to the two hawks. Should any future projects
be proposed in areas inhabited by these hawks, the two agencies will
already have the information needed to determine if the species may be
impacted by the proposed action.
Regulations promulgated for implementing Section 7 provide for both
a jeopardy standard, based on listing alone, and for a destruction or
adverse modification standard, in cases where critical habitat has been
designated. The Puerto Rican broad-winged and sharp-shinned hawks
occupy restricted areas within the borders of the Caribbean National
Forest and several Commonwealth forests. Any significant adverse
modification or destruction of their habitat would likely jeopardize
their continued existence. Under these conditions, the standards for
jeopardy and adverse modification are essentially equivalent.
Therefore, no additional protection for the species would accrue from
critical habitat designation that would not also accrue from listing
these species. Once listed, the Service believes that protection of
their habitat can be accomplished through the Section 7 jeopardy
standard, and through Section 9 prohibitions against take. It is more
likely, however, that any federally related actions of concern will
receive early review and any problems will be resolved informally.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing encourages and
results in conservation actions by Federal, Commonwealth, and private
agencies, groups, and individuals. The Endangered Species Act provides
for possible land acquisition and cooperation with the Commonwealth,
and requires that recovery actions be carried out for all listed
species. Such actions are initiated by the Service following listing.
The protection required of Federal agencies and the prohibitions
against taking are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) requires Federal agencies to confer
informally with the Service on any action that is likely to jeopardize
the continued existence of a proposed species or result in destruction
or adverse modification of proposed critical habitat. If a species is
subsequently listed, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or to
destroy or adversely modify its critical habitat. If a Federal action
may adversely affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with the
Service.
In the case of the two hawks, Federal involvement relates to
activities to be conducted or permitted by the U.S. Forest Service in
the Caribbean National Forest, or by other Federal agencies in
Commonwealth forests. Federal funds or permits could be involved in the
construction, maintenance or enlargement of facilities such as power
substations, communication towers, and roads and trails in Commonwealth
forests. Federal funds could be utilized by the Department of Resources
in the management of Commonwealth forests.
The Act and implementing regulations found at 50 CFR 17.21 set
forth a series of general prohibitions and exceptions that apply to all
endangered wildlife. These prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, hill, trap, or
collect; or to attempt any of these), import or export, ship in
interstate commerce in the course of commercial activity, or sell or
offer it for sale in interstate or foreign commerce any listed species.
It also is illegal to possess, sell, deliver, carry, transport, or ship
any such wildlife that has been taken illegally. Certain exceptions
apply to agents of the Service and Commonwealth conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and/or for incidental take in
connection with otherwise lawful activities.
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
any comments or suggestions from the public, other concerned
governmental agencies, the scientific community, industry, or any other
interested party concerning any aspect of this proposed rule are hereby
solicited. Comments particularly are sought concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to the Puerto Rican broad-winged hawk and
the Puerto Rican sharp-shinned hawk;
(2) The location of any additional populations of these two
species, and the reasons why any habitat should or should not be
determined to be critical habitat as provided by section 4 of the Act;
(3) Additional information concerning the range and distribution of
these species; and
(4) Current or planned activities in the subject areas and their
possible impacts on any of these two species.
Final promulgation of a regulation on the Puerto Rican broad-winged
hawk and the Puerto Rican sharp-shinned hawk will take into
consideration the comments and any additional information received by
the Service, and such communications may lead to a final regulation
that differs from this proposal.
The Endangered Species Act provides for a public hearing on this
proposal, if requested. Requests must be received within 45 days of the
date of publication of the proposal. Such requests must be made in
writing and addressed to the Field Supervisor, U.S. Fish and Wildlife
Service, Caribbean Field Office, P.O. Box 491, Boqueron, Puerto Rico
00622.
National Environmental Policy Act
The Fish and Wildlife Service has determined that an Environmental
Assessment, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to Section 4(a) of the Endangered
Species Act of 1973, as amended. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
References Cited
Bowdish, B.S. 1902. Birds of Porto Rico. The Auk 19: 356-366; The
Auk 20: 10-23.
Cruz, A., and C.A. Delannoy. 1986. Status, breeding biology and
conservation needs of the Puerto Rican sharp-shinned hawk, Accipiter
striatus venator. Final report submitted to the U.S. Fish and
Wildlife Service as specified in work contract no. 14-16-0004-82-
031.
Danforth, S.T. 1931. Puerto Rican Ornithological Records. J. of
Agriculture of the University of Puerto Rico 15: 33-106.
Danforth, S.T., and J.A. Smyth. 1935. The Puerto Rican forms of the
broad-winged hawk. J. of Agriculture of the University of Puerto
Rico 19:485-486.
Danforth, S.T. 1936. Los Pajaros de Puerto Rico. Rand McNally and
Co., New York, U.S.A.
Delannoy, C.A. 1991. Status surveys of the Puerto Rican sharp-
shinned hawk (Accipiter striatus venator) and Puerto Rican broad-
winged hawk (Buteo platypterus brunnescens). First progress report
submitted to the U.S. Fish and Wildlife Service as specified in work
contract no. 14-16-0004-91-031.
Delannoy, C.A. 1992. Status surveys of the Puerto Rican sharp-
shinned hawk (Accipiter striatus venator) and Puerto Rican broad-
winged hawk (Buteo platypterus brunnescens). Final report submitted
to the U.S. Fish and Wildlife Service as specified in work contract
no. 14-16-0004-91-031.
Gundlach, J. 1878. Apuntes para la fauna Puerto-Riquena. Aves.
Anales de la Sociedad Espanola de Historia Natural de Madrid 7:141-
422.
Hernandez, E. 1980. Estudio de aves, reptiles y anfibios en la
reserva forestal de Carite. Informe presentado como requisito del
curso Ciencias Naturales 306, Programa de Mantenimiento Ambiental.
Facultad de Ciencias Naturales, Universidad de Puerto Rico, Recinto
de Rio Piedras, Rio Piedras, Puerto Rico.
Leopold, N. 1963. Checklist of birds of Puerto Rico and the Virgin
Islands. Univ. of Puerto Rico Agric. Exp. Sta. Bull. 168.
Perez-Rivera, R. and R. Cotte-Santana. 1977. Algunas notas sobre los
falconiformes residentes en Puerto Rico. Science-Ciencia 4:89-95.
Raffaele, H.A. 1989. A guide of the Birds of Puerto Rico and the
Virgin Islands. Princeton University Press, New Jersey.
Santana, E. and S. Temple. 1984. Management recommendations for the
Puerto Rican parrot and red-tail hawk in Luquillo Experimental
Forest. Final Report to the U.S. Forest Service under Cooperative
Agreement Contract No. 19-80-393.
Snyder, N.F., J.W. Wiley and C.B. Kepler. 1987. The parrots of
Luquillo: Natural history and conservation of the Puerto Rican
parrot. Western Foundation of Vertebrate Zoology, Los Angeles,
California.
Stahl, Agustin. 1883. Fauna de Puerto Rico. Aves. Clasificacion
Sistematica de los Animales que Corresponden a esta Fauna y Catalogo
del Gabinete del Dr. Agustin Stahl en Bayamon, Puerto Rico. Imprenta
del Boletin Mercantil.
Wattel, J. 1973. Geographical differentiation in the genus
Accipiter. Nuttall Ornithol.Club.Publ. 13.
Wetmore, A. 1914. A new Accipiter from Puerto Rico with notes on the
allied forms of Cuba and Sto. Domingo. Proc. Biol. Soc. Wash.
27:119-122.
Wetmore, A. 1922. Bird remains from the caves of Porto Rico. Bull.
Amer. Mus. Nat. Hist. 46:297-333.
Wetmore, A. 1927. The Birds of Porto Rico and the Virgin Islands.
Scientific Survey of Puerto Rico and the Virgin Islands. Vol. IX.
New York Academy of Sciences, New York, U.S.A.
Wiley, J.W., and G.P. Bauer. 1985. Caribbean National Forest, Puerto
Rico. American Birds 39:12-18.
Author
The primary author of this proposed rule is Ms. Marelisa Rivera,
Caribbean Field Office, U.S. Fish and Wildlife Service, P.O. Box 491,
Boqueron, Puerto Rico 00622 (809/851-7297).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Proposed Regulations Promulgation
Accordingly, it is hereby proposed to amend part 17, subchapter B
of chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
Part 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625. Stat. 3500; unless otherwise noted.
2. Sec. 17.12(h) is amended by adding the following, in
alphabetical order, under BIRDS, to the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
----------------------------------------------- Historic range where endangered or Status When Critical Special
Common name Scientific name threatened listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Birds
* * * * * * *
Hawk, Puerto Rican Buteo platypterus U.S.A. (PR)........... Entire................ E.................... ........ NA......... NA
broad-winged. brunnescens.
Hawk, Puerto Rican Accipiter striatus U.S.A. (PR)........... Entire................ E.................... ........ NA......... NA
sharp-shinned. venator.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: December 2, 1993
Richard N. Smith,
Acting Director, Fish and Wildlife Service.
[FR Doc. 93-32052 Filed 12-30-93; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 93-32042 Radio Broadcasting Services; Cadiz and Oak Grove, Kentucky
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32042]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-314, RM-8396]
Radio Broadcasting Services; Cadiz and Oak Grove, Kentucky
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document requests comments on a petition by Ham
Broadcasting, Inc., licensee of Station WKDZ(FM), Channel 292A, Cadiz,
Kentucky, seeking the substitution of Channel 293C3 for Channel 292A at
Cadiz, Kentucky, and the reallotment of Channel 293C3 from Cadiz,
Kentucky to Oak Grove, Kentucky, and the modification of the license
for Station WKDZ(FM) to specify Oak Grove as its community of license,
in accordance with Sec. 1.420(i) of the Commission's rules. The
coordinates for Channel 293C3 at Oak Grove are North Latitude 36-45-05
and West Longitude 87-27-02.
DATES: Comments must be filed on or before February 18, 1994, and reply
comments on or before March 4, 1994.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: Peter
Tannenwald, Arent, Fox, Kintner, Plotkin & Kahn, 1050 Connecticut
Avenue, NW., Washington, DC 20036-5339 (Counsel for petitioner).
FOR FURTHER INFORMATION CONTACT:
Nancy J. Walls, Mass Media Bureau, (202) 634-6530.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 93-314, adopted December
3, 1993, and released December 28, 1993. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC Reference Center (room 239), 1919 M
Street, NW., Washington, DC. The complete text of this decision may
also be purchased from the Commission's copy contractors, International
Transcription Service, Inc., (202) 857-3800, 1919 M Street, NW., room
246, or 2100 M Street, NW., suite 140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John Karousos,
Acting Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 93-32042 Filed 12-30-93; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 93-32041 Radio Broadcasting Services; Bagdad, AZ
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32041]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-311, RM-8382]
Radio Broadcasting Services; Bagdad, AZ
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document requests comments on a petition for rule making
filed by Chris Sarros requesting the allotment of FM Channel 276C3 to
Bagdad, Arizona, as that community's second local FM service.
Coordinates for Channel 276C3 are 34-28-50 and 113-20-08. Bagdad is
located within 320 kilometers (199 miles) of the United States-Mexico
border, and therefore, the Commission must obtain concurrence of the
Mexican government to this proposal.
DATES: Comments must be filed on or before February 18, 1994, and reply
comments on or before March 4, 1994.
ADDRESSES: Secretary, Federal Communications Commission, Washington, DC
20554. In addition to filing comments with the FCC, interested parties
should serve the petitioner, as follows: Chris Sarros, 3815 Northfield
Avenue, Kingman, Arizona 86401.
FOR FURTHER INFORMATION CONTACT:
Nancy Joyner, Mass Media Bureau, (202) 634-6530.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 93-311, adopted December
7, 1993, and released December 28, 1993. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC's Reference Center (room 239), 1919 M
Street, NW., Washington, DC. The complete text of this decision may
also be purchased from the Commission's copy contractors, International
Transcription Service, Inc., (202) 857-3800, 2100 M Street, NW., Suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
See 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Acting Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 93-32041 Filed 12-30-93; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 93-32040 Radio Broadcasting Services; Gallup, New Mexico
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32040]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-312, RM-8394]
Radio Broadcasting Services; Gallup, New Mexico
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Commission requests comments on a petition filed by Lewis
J. Wallach seeking the allotment of Channel 268A to Gallup, New Mexico,
as the community's fifth local commercial FM broadcast service. Channel
268A can be allotted to Gallup in compliance with the Commission's
minimum distance separation requirements without the imposition of a
site restriction, at coordinates North Latitude 35-31-30 and West
Longitude 108-44-30.
DATES: Comments must be filed on or before February 18, 1994, and reply
comments on or before December 28, 1994.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: Lewis
J. Wallach, 4310 Pan American, suite 208, Albuquerque, New Mexico 87107
(Petitioner).
FOR FURTHER INFORMATION CONTACT:
Leslie K. Shapiro, Mass Media Bureau, (202) 634-6530.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 93-312, adopted December
7, 1993, and released December 28, 1993. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC Reference Center (room 239), 1919 M
Street, NW., Washington, DC. The complete text of this decision may
also be purchased from the Commission's copy contractor, International
Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW., suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Acting Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 93-32040 Filed 12-30-93; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 93-32039 Radio Broadcasting Services; Bay Minette and Daphne, AL
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32039]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-313, RM-8390]
Radio Broadcasting Services; Bay Minette and Daphne, AL
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document requests comments on a petition for rule making
filed on behalf of Baldwin Broadcasting Company, licensee of Station
WFMI(FM), Channel 293C3, Bay Minette, Alabama, seeking the reallotment
of Channel 293C3 to Daphne, Alabama, and modification of its license
accordingly. Petitioner proposes no reception change in the present
technical facilities of Station WFMI(FM) to accommodate its proposal,
and is therefore requested to provide additional information to
demonstrate the public interest benefits that would result from the
proposed change in community of license. Coordinates for this proposal
are 30-40-45 and 87-50-24.
DATES: Comments must be filed on or before February 18, 1994, and reply
comments on or before March 4, 1994.
ADDRESSES: Secretary, Federal Communications Commission, Washington, DC
20554. In addition to filing comments with the FCC, interested parties
should serve the petitioner's counsel, as follows: Barry D. Wood, Esq.,
Jones, Waldo, Holbrook & McDonough, P.C, Suite 900, 2300 M Street, NW.,
Washington, DC 20037.
FOR FURTHER INFORMATON CONTACT: Nancy Joyner, Mass Media Bureau, (202)
634-6530.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 93-313, adopted December
7, 1993, and released December 28, 1993. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC's Reference Center (room 239), 1919 M
Street, NW., Washington, DC. The complete text of this decision may
also be purchased from the Commission's copy contractors, International
Transcription Service, Inc., (202) 857-3800, 2100 M Street, NW. Suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Acting Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 93-32039 Filed 12-30-93; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 93-32038 Radio Broadcasting Services; Butte, Montana
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32038]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-308, RM-8383]
Radio Broadcasting Services; Butte, Montana
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document requests comments on a petition filed by The
Montana College of Mineral Sciences and Technology, proposing the
substitution of Channel 295A for Channel *218A at Butte, Montana,
reservation of the Channel for noncommercial educational use and
modification of the license for Station KMSM-FM, to specify operation
on Channel *295A. The coordinates for Channel *295A are 46-00-43 and
112-33-23. We shall propose to modify the license for Station KMSM-FM
in accordance with the Commission's Rules and will not accept competing
expressions of interest for the use of the channel or require
petitioner to demonstrate the availability of an additional equivalent
class channel for use by such parties.
DATES: Comments must be filed on or before February 18, 1994, and reply
comments on or before March 4, 1994.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner's counsel, as follows: Neal J. Friedman, Pepper &
Corazzini, 200 Montgomery Building, 1776 K Street, NW., Washington, DC
20006.
FOR FURTHER INFORMATION CONTACT:
Kathleen Scheuerle, Mass Media Bureau, (202) 634-6530.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rule Making, MM Docket No. 93-308, adopted December 8,
1993, and released December 28, 1993. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the Commission's Reference Center (room 239), 1919 M Street,
NW., Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractors, International
Transcription Services, Inc., 2100 M Street, NW., suite 140,
Washington, DC 20037, (202) 857-3800.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contact.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73:
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Acting Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 93-32038 Filed 12-30-93; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 93-32037 Radio Broadcasting Services; Buhl, Minnesota
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32037]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-309, RM-8393]
Radio Broadcasting Services; Buhl, Minnesota
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document requests comments on a petition filed by
Minnesota Public Radio proposing the allotment of Channel 223C2 to
Buhl, Minnesota, and reservation of the channel for noncommercial
educational use. Canadian concurrence has been requested for the
allotment of Channel *223C2 at Buhl without a site restriction at
coordinates 47-29-37 and 92-46-40.
DATES: Comments must be filed on or before February 18, 1994, and reply
comments on or before March 4, 1994.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner's counsel, as follows: Richard J. Bodorff, Todd M.
Stansbury, Wiley, Rein & Fielding, 1776 K Street, NW., Washington, DC
20006.
FOR FURTHER INFORMATION CONTACT:
Kathleen Scheuerle, Mass Media Bureau, (202) 634-6530.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rule Making, MM Docket No. 93-309, adopted December 8,
1993, and released December 28, 1993. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the Commission's Reference Center (room 239), 1919 M Street,
NW., Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractors, International
Transcription Services, Inc., 2100 M Street, NW., Suite 140,
Washington, DC 20037, (202) 857-3800.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contact.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Acting Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 93-32037 Filed 12-30-93; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 93-32036 Radio Broadcasting Services; Chester, Virginia
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32036]
[[Page Unknown]]
[Federal Register: January 3, 1994]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-310, RM-8395]
Radio Broadcasting Services; Chester, Virginia
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Commission requests comments on a petition filed by
Hoffman Communications, Inc., licensee of Station WDYL-FM, Channel
226A, Chester, Virginia, proposing the substitution of Channel 289A for
Channel 226A at Chester and modification of its license to specify
operation on the alternate Class A channel. Channel 289A can be
allotted to Chester in compliance with the Commission's minimum
distance separation requirements with a site restriction of 4.2
kilometers (2.6 miles) northwest. The coordinates for Channel 289A at
Chester are 37-23-11 and 77-28-26. We will not accept competing
expressions of interest in the use of Channel 289A at Chester because
the procedures outlined in Modification of FM and TV Licenses, 98 FCC
2nd 916 (1984), and Sec. 1.420(g) of the Commission's Rules, do not
apply in this case since no upgrade in facilities is contemplated.
DATES: Comments must be filed on or before February 18, 1994, and reply
comments on or before March 4, 1994.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: David M
Silverman, Esq., Cole, Raywid & Braverman, 1919 Pennsylvania Avenue,
NW., Suite 200, Washington, DC 20006 (Counsel for petitioner).
FOR FURTHER INFORMATION CONTACT:
Pamela Blumenthal, Mass Media Bureau, (202) 634-6530.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 93-310, adopted December
8, 1993, and released December 28, 1993. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC's Reference Center (room 239), 1919 M
Street, NW., Washington, DC. The complete text of this decision may
also be purchased from the Commission's copy contractor, ITS, Inc.,
(202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John Karousos,
Acting Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 93-32036 Filed 12-30-93; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 93-32028 Revenues Management
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32028]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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DEPARTMENT OF THE INTERIOR
Bureau of Reclamation
43 CFR Part 403
RIN 1006-AA30
Revenues Management
AGENCY: Bureau of Reclamation, Interior.
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Reclamation (Reclamation) is proposing to
publish rules and guidelines detailing the authorized crediting of
revenues derived from the incidental use of Reclamation water projects
and project lands under the jurisdiction of Reclamation. Due to
existing confusion in revenues crediting criteria, rules will be
utilized to clearly define front-end, tail-end, and general credit and
when each is appropriate. Rules are necessary to define statutory
language which may seem ambiguous and which may have caused confusion
in the past. The rules will also govern the treatment of the
contractors who have received unauthorized credits in the past.
DATES: Reclamation invites the public to submit written comments on the
proposed rulemaking action. Comments must be submitted on or before
February 2, 1994.
ADDRESSES: Written comments on the proposed rules and guidelines should
be addressed to J. William McDonald, Assistant Commissioner-Resources
Management, Bureau of Reclamation, Denver Office, P.O. Box 25007,
Denver, CO 80225-0007.
FOR FURTHER INFORMATION CONTACT:
Ms. Jaralyn Beek, Head, Revenues, Section, Bureau of Reclamation, D-
5612, P.O. Box 25007, Denver, CO 80225-000 of telephone (303) 236-1061,
extension 227.
SUPPLEMENTARY INFORMATION: The passage of the 1902 Reclamation Act, as
amended and supplemented provided for the creation of a fund within the
United States Treasury (Reclamation fund) to be used to finance water
projects in the arid West. Subsequently, water projects were
constructed under a variety of statutory authorities with the
beneficiaries generally repaying those costs determined to be
reimbursable through scheduled payments.
Revenues are generated from the incidental use of Reclamation water
projects and the lands under the jurisdiction of Reclamation. These
uses are authorized by Reclamation law and the disposition of the
revenues generated by the uses are mandated by law. These uses include,
but are not limited to, grazing, the leasing of minerals such as oil
and gas, commercial uses, cabin sites, storage of non-project water,
sale of surplus water, etc. Generally, these revenues are credited in
one of three ways. These are:
(1) Revenues which may be distributed as a general credit to the
Reclamation fund;
(2) Revenues which may be distributed as a ``tail-end'' credit to
the construction costs; and
(3) Revenues which may be distributed as a ``front-end'' or direct
credit to the annual obligations of the water users.
The revenues which are distributed as a general credit to the
Reclamation fund are not meant to be spent on specific functions or
projects, but rather are accessible only as directed by the laws which
govern the Reclamation fund.
The second type of disbursement, a tail-end credit (also termed a
credit to the project), involves application of the funds against the
last payment due in the repayment schedule. The reimbursable portion of
a water project's construction cost is amortized and repaid by the
beneficiaries (districts). With this type of revenues crediting the net
result is accelerated repayment of the project's construction cost,
without relieving the project users of their requirement to pay some or
all of their annual obligation.
The third type of revenue crediting is termed a front-end or direct
credit. This method allows the ``direct'' crediting of specific
revenues on the annual construction repayment and operation and
maintenance obligations of the water districts. Under the general
legislative authority which provided for front-end crediting the water
user could receive benefit from the direct crediting of revenues only
from specified sources:
(1) Power plants;
(2) Leasing of project grazing and farm lands; and
(3) The sale or use of town sites.
The primary difference between the tail-end credit and a front-end
credit is that the front-end or direct credit is used to satisfy a
water user's current construction payment. Any revenues in excess of
the annual construction payment are to be applied first against the
annual operation and maintenance expenses of the district and then as
the water users direct. This crediting assists the water user or
district in meeting current obligations rather than accelerating the
repayment of the construction obligation and applies to only a limited
number of contracts written between 1924 and 1938.
Exceptions to the general revenue disposition requirements are
revenue crediting criteria directed by project specific legislation.
The specific method used to disburse the revenues is dependent upon
the particular statute which authorizes the activity and mandates the
crediting of revenues, the activity generating the revenue, and the
status of the lands involved (whether the lands are withdrawn public
domain lands or lands purchased/acquired for the project).
Inasmuch as Reclamation does not have the latitude to dispose of
revenues differently than is required by law, Reclamation has recently
completed the first stage of a review of general and project-specific
legislation, repayment contracts and amendments, and current
Reclamation practices as they pertain to collection and crediting of
revenues. The intent of the initial review was to ensure that revenues
crediting fully complies with statutory requirements and focused
primarily on those revenues from which the water users receive direct
benefit. Reclamation has determined that there have been instances
where revenues may have been credited (direct credits) to the benefit
of the water users (districts) rather than to reduce the total
construction repayment obligation. This improper crediting is a result
of incomplete or inaccurate guidelines within Reclamation and, in some
instances, inappropriate contract provisions.
Reclamation intends to propose rules that would clearly set forth
when direct or front-end credits, tail-end credits, and credits to the
Reclamation fund are authorized, and will define ambiguous statutory
terms that have caused confusion in the past. In addition, the rules
would propose to establish an appeal process for districts who are
notified of improper past crediting. Reclamation also will propose to
require districts to pay interest on unpaid balances once notified of
underpayment.
Dated: December 23, 1993.
Donald R. Glaser,
Deputy Commissioner.
[FR Doc. 93-32028 Filed 12-30-93; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 93-32026 Airworthiness Directives; Textron Lycoming Reciprocating Engines
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32026]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 93-ANE-48]
Airworthiness Directives; Textron Lycoming Reciprocating Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes to supersede an existing airworthiness
directive (AD), applicable to certain Textron Lycoming reciprocating
engines, that currently requires replacement of sintered iron impellers
in oil pumps. This action would continue to require replacement of
sintered iron impellers, but would also require replacement of aluminum
impellers. This proposal is prompted by reports of additional oil pump
failures caused by aluminum impellers, which do not have the
reliability of the hardened steel impellers. The actions specified by
the proposed AD are intended to prevent an oil pump failure due to
impeller failure, which could result in an engine failure.
DATES: Comments must be received by March 4, 1994.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), New England Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 93-ANE-48, 12 New England
Executive Park, Burlington, MA 01803-5299. Comments may be inspected at
this location between 8 a.m. and 4:30 p.m., Monday through Friday,
except Federal holidays.
The service information referenced in the proposed rule may be
obtained from Textron Lycoming, Reciprocating Engine Division, 652
Oliver St., Williamsport, PA 17701. This information may be examined at
the FAA, New England Region, Office of the Assistant Chief Counsel, 12
New England Executive Park, Burlington, MA.
FOR FURTHER INFORMATION CONTACT: Nicholas Minniti, Aerospace Engineer,
New York Aircraft Certification Office, FAA, Engine and Propeller
Directorate, 181 South Franklin Ave., Room 202, Valley Stream, NY
11581; telephone (516) 791-7421, fax (516) 791-9024.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications should identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 93-ANE-48.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, New England Region, Office of the Assistant Chief Counsel,
Attention: Rules Docket No. 93-ANE-48, 12 New England Executive Park,
Burlington, MA 01803-5299.
Discussion:
On August 14, 1981, the Federal Aviation Administration (FAA)
issued AD 81-18-04, Amendment 39-4199 (46 FR 43134, August 27, 1981),
to require replacement of sintered iron oil pump impellers and oil pump
shafts with impellers and shafts made of aluminum or hardened steel in
certain Textron Lycoming reciprocating engines. That action was
prompted by reports of oil pump failures. Subsequent to the publication
of AD 81-18-04, the FAA issued two revisions to AD 81-18-04 they are:
81-18-04R1, Amendment 39-4258 (46 FR 56157, November 16, 1981),
effective November 19, 1981, and AD 81-18-04R2, Amendment 39-4395 (47
FR 23691, June 1, 1982), effective June 7, 1982. That condition, if not
corrected, could result in an oil pump failure due to impeller failure,
which could result in an engine failure.
Since the issuance of AD 81-18-04R2, the FAA has received reports
of additional oil pump failures. The FAA has determined that some
sintered iron impellers and shafts are still in service, as some
engines have not reached the replacement time specified in that AD. The
FAA has also determined that the aluminum impellers and shafts do not
have the reliability of the hardened steel impellers and shafts.
Therefore, aluminum impellers and shafts must be replaced with hardened
steel impellers and shafts after no more than 750 hours time in
service.
The FAA has reviewed and approved the technical contents of the
following service bulletins (SB): Avco Lycoming SB No. 381, Revision C,
dated November 7, 1975; Avco Lycoming SB No. 385, Revision C, dated
October 3, 1975; Avco Lycoming Textron SB No. 454, Revision B, dated
January 2, 1987; Avco Lycoming Textron SB No. 455, Revision D, dated
January 2, 1987; and Textron Lycoming SB No. 456, Revision F, dated
February 8, 1993. These SB's describe procedures for replacing sintered
iron and aluminum impellers and shafts with hardened steel impellers
and shafts.
Since an unsafe condition has been identified that is likely to
exist or develop on other products of this same type design, the
proposed AD would supersede AD 81-18-04 R2 to require replacing
sintered iron and aluminum impellers and shafts with hardened steel
impellers and shafts. Engines affected by Textron Lycoming SB No. 456,
Revision F, dated February 8, 1993, must have their sintered iron
impellers replaced with hardened steel impellers and shafts within 100
hours time in service, or no later than one year after the effective
date of this AD, whichever occurs first. This calendar end-date has
been determined based on Textron Lycoming's analysis that the sintered
iron impellers suffer from rust, and consequently a loss in strength,
after an extended period of time in service. Some of these impellers
have been in service for up to 20 years.
There are approximately 4,000 engines of the affected design in the
worldwide fleet. The FAA estimates that 2,400 engines installed on
aircraft of U.S. registry would be affected by this proposed AD, that
it would take approximately 9 work hours per engine to accomplish the
proposed actions, and that the average labor rate is $55 per work hour.
Required parts would cost approximately $740 per engine. Based on these
figures, the total cost impact of the proposed AD on U.S. operators is
estimated to be $2,964,000. This figure is based on the assumption that
none of the affected engines installed on U.S. Registry, have hardened
steel impellers installed.
The regulations proposed herein would 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. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this 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) if promulgated, 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. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ``ADDRESSES.''
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend 14
CFR part 39 of the Federal Aviation Regulations as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. App. 1354(a), 1421 and 1423; 49 U.S.C.
106(g); and 14 CFR 11.89.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-4395, and by
adding a new airworthiness directive to read as follows:
Textron Lycoming: Docket No. 93-ANE-48. Supersedes AD 81-18-04 R2,
Amendment 39-4395.
Applicability: Textron Lycoming O-235, O-290-D, O-290-D2, O-320,
IO-320, AIO-320, AEIO-320, LIO-320, O-340, O-360, IO-360, AIO-360,
AEIO-360, AEIO-360, HO-360, HIO-360, LO-360, LIO-360, TIO-360, TO-
360, LTO-360, VO-360, IVO-360, O-540, and IO-540 series
reciprocating engines, except for the following models: O-320-H2AD,
O-360-E1A6D, LO-360-E1A6D, TO-360-E1A6D, LTO-360-E1A6D, IO-540-P1A5,
IO-540-R1A5, IO-540-S1A5, and O-540 and IO-540 series engines built
with large capacity oil pumps and dual magnetos designated with
``5D'' in the model suffix; for example, IO-540-K1A5D. These engines
are installed on but not limited to the following aircraft: various
models of single and twin engine powered Cessna, Piper, Mooney,
Beech, Gulfstream American, Maule, and Socata.
Note: This AD may not contain an exhaustive list of aircraft
that utilize the affected engines because other aircraft may have an
affected engine installed through, for example, approvals made by
Supplemental Type Certificate, or FAA Form 337, ``Major Repair and
Alteration.'' It is the responsibility of each aircraft owner,
operator, and person returning that aircraft to service to determine
if that aircraft has an affected engine.
Compliance: Required as indicated, unless accomplished
previously.
To prevent oil pump failure due to impeller failure, which could
result in an engine failure, accomplish the following:
(a) For Textron Lycoming Model HIO-360-D1A, -E1AD, -E1BD, and -
F1AD engines with serial numbers (S/N) of L-22579-51A or prior,
except for the following: S/N L-22311-51A through L-22313-51A, L-
22396-51A, L-22397-51A, L-22416-51A, L-22546-51A through L-22549-
51A, L-22563-51A, L-22568-51A through L-22571-51A; for Textron
Lycoming Model HIO-360-D1A, -E1AD, -E1BD, and -F1AD engines that
were overhauled in the field or remanufactured prior to April 1,
1981, regardless of S/N; and for engines listed by S/N in Textron
Lycoming Service Bulletin (SB) No. 455, Revision D, dated January 2,
1987; accomplish the following:
(1) Replace the sintered iron oil pump impeller and shaft with a
hardened steel impeller and shaft in accordance with Avco Lycoming
Textron SB No. 454, Revision B, dated January 2, 1987, or Avco
Lycoming Textron SB No. 455, Revision D, dated January 2, 1987, as
applicable, within 25 hours time in service (TIS) after the
effective date of this AD.
(2) No action is required if engines have complied with AD 81-
18-04, 81-18-04 R1, or 81-18-04 R2, and have incorporated oil pumps
with a hardened steel impeller and shaft. Engines that incorporate
oil pumps fitted with an aluminum impeller and shaft must comply
with paragraph (c) of this AD.
(b) For engines listed by S/N in Textron Lycoming SB No. 456,
Revision F, dated February 8, 1993, that incorporate a sintered iron
impeller, accomplish the following:
(1) Replace any sintered iron oil pump impeller and shaft with a
hardened steel impeller and shaft in accordance with Textron
Lycoming SB No. 456, Revision F, dated February 8, 1993, within 100
hours TIS after the effective date of this AD, or one year after the
effective date of this AD, whichever occurs first.
(2) No action is required if engines have complied with AD 81-
18-04, 81-18-04 R1, or 81-18-04 R2, and have incorporated oil pumps
with a hardened steel impeller and shaft. Engines that incorporate
oil pumps fitted with an aluminum impeller and shaft must comply
with paragraph (c) of this AD.
(c) For all other affected engines, replace any aluminum oil
pump impeller and shaft with a hardened steel impeller and shaft in
accordance with Avco Lycoming Textron SB No. 455, Revision D, dated
January 2, 1987, or Textron Lycoming SB No. 456, Revision F, dated
February 8, 1993, as applicable, as follows:
(1) For oil pumps that have accumulated 650 hours or more TIS on
the effective date of this AD, replace within 100 hours TIS after
the effective date of this AD.
(2) For oil pumps that accumulated less than 650 hours TIS on
the effective date of this AD, replace prior to accumulating 750
hours TIS.
(3) No action is required if engines have complied with AD 81-
18-04, 81-18-04 R1, or 81-18-04 R2, and have incorporated oil pumps
with a hardened steel impeller and shaft.
Note: Engines originally manufactured prior to 1970 did not
incorporate sintered iron impellers. For further information, refer
to engine maintenance/overhaul logbook records, Lycoming build
records, and the following SB's provide additional guidance: Avco
Lycoming SB No. 381, Revision C, dated November 7, 1975, and Avco
Lycoming SB No. 385, Revision C, dated October 3, 1975, describe a
method for determining if the early design oil pump with aluminum/
steel impellers are installed. Avco Lycoming SB No. 455, Revision A,
dated August 18, 1981, and Avco Lycoming SB No. 455, Revision B,
dated January 2, 1987, and Avco Lycoming SB No. 456, dated August
21, 1981, and Avco Lycoming SB No. 456, Revision A, dated September
25, 1981, introduced steel driving impeller, P/N 60746, and aluminum
driven impeller, P/N LW13775.
(d) Sintered iron and aluminum impellers approved under FAA
Parts Manufacturer Approval (PMA) are replacements for affected part
numbers of Lycoming impellers and must also be replaced in
accordance with paragraphs (a), (b), or (c), as applicable, of this
AD.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, New York Aircraft Certification
Office. The request should be forwarded through an appropriate FAA
Maintenance Inspector, who may add comments and then send it to the
Manager, New York Aircraft Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the New York Aircraft Certification
Office.
(f) Special flight permits may be issued in accordance with FAR
21.197 and 21.199 to operate the airplane to a location where the
requirements of this AD can be accomplished.
Issued in Burlington, Massachusetts, on December 21, 1993.
Jay J. Pardee,
Acting Manager, Engine and Propeller Directorate, Aircraft
Certification Service.
[FR Doc. 93-32026 Filed 12-30-93; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 93-31871 Petition for Rulemaking; Summary of Petitions Received; Dispositions of Petitions Issued
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-31871]
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[Federal Register: January 3, 1994]
VOL. 59, NO. 1
Monday, January 3, 1994
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Chapter I
[Summary Notice No. PR-93-20]
Petition for Rulemaking; Summary of Petitions Received;
Dispositions of Petitions Issued
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of petitions for rulemaking received and of dispositions
of prior petitions.
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SUMMARY: Pursuant to FAA's rulemaking provisions governing the
application, processing, and disposition of petitions for rulemaking
(14 CFR Part 11), this notice contains the substance of a petition for
rulemaking filed by the Experimental Aircraft Association, (EAA). EAA
filed this petition in the form of notice of proposed rulemaking, and
the FAA is publishing the substance of EAA's proposal verbatim, in
order 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 is intended to
affect the legal status of any petition or its final disposition. The
FAA is publishing EAA's petition without comment or endorsement.
DATES: Comments on petitions received must identify the petition docket
number involved and must be received by March 4, 1994.
ADDRESSES: Send comments on any petition in triplicate to: Federal
Aviation Administration, Office of the Chief Counsel, Attn: Rules
Docket No. 27517, 800 Independence Avenue, SW., Washington, DC 20591.
The petition, any comments received, and a copy of any final
disposition are filed in the assigned regulatory docket and are
available for examination in the Rules Docket (AGC-10), Room 915G, FAA
Headquarters Building (FOB 10A), 800 Independence Ave., SW.,
Washington, DC 20591; telephone (202) 267-3132
FOR FURTHER INFORMATION CONTACT:
Mr. Frederick M. Haynes, Office of Rulemaking (ARM-1), Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-3939.
This notice is published pursuant to paragraphs (b) and (f) of
Sec. 11.27 of part 11 of the Federal Aviation Regulations (14 CFR part
11).
Issued in Washington, DC on December 22, 1993.
Donald P. Byrne,
Assistant Chief Counsel, Regulations Division.
Petitions for Rulemaking
Docket No.: 27517.
Petitioner: Experimental Aircraft Association.
Regulations Affected: 14 CFR Part 61.
Description of Rulechange Sought:
SUMMARY: Experimental Aircraft Association (EAA) submits this NPRM as a
proposal to amend several sections of the Federal Aviation Regulations
(FAR) as they apply to student and recreational pilot activity.
Specifically, student and recreational pilots will be permitted to hold
at least a current third-class medical certificate issued under part 67
of this chapter or certify that he or she has no known medical defect
that makes him or her unable to pilot an aircraft, all certificated
pilots will be permitted the same option when exercising the privileges
of a recreational pilot certificate. Further, the holder of a flight
instructor certificate with an appropriate category and class rating,
while holding at least a current third-class medical certificate issued
under part 67 of this chapter or certifying that he or she has no known
medical defect that makes him or her unable to pilot an aircraft, will
be permitted to instruct student pilots seeking a recreational pilot
certificate or the holder of a recreational pilot certificate seeking
advanced training. The proposed amendments will permit additional
flight activity, encouraged increased proficiency by lowering the cost
of recreational flying and assist in the revitalization of general and
sport aviation by relieving a burdensome and expensive regulation,
without a degradation of aviation safety. The Federal Aviation
Administration (FAA) publishes this NPRM without comment.
Background
Current medical certification requirements have existed for decades
and have remained unchanged in the face of medical advancement. In
fact, accident summary data from 1986 through 1992 indicates that the
percentage of accidents involving medical causal factors is lower for
those recreational type activities that do not require medical
certification than those activities that do require medical
certification. During those seven years, there were 761 accidents in
lighter-than-air aircraft and sailplanes. These operations do not
require FAA medical certification. Only one of these 761 accidents
showed a medical cause resulting in a .13% of total accidents. Of
general aviation operations requiring medical certification, there were
46,976 total accidents, 99 of which (.21%) showed medical cause. During
this same time frame, medical causal accidents as a part of the total
were .19% for amateur-built aircraft and .16% for airplanes less than
12,500 pounds. A safety problem is not evident for basic aircraft used
for limited recreational purposes. (See the following chart):
Accident Summary
[January 1, 1986 to December 31, 1992]
------------------------------------------------------------------------
Percent of
Total accidents Medical cause accidents medical
all causes accidents causal
------------------------------------------------------------------------
Lighter-than-
air........... 327 0 0.00
Sailplanes..... 434 1 0.23
All ``No
Medical Req.'' 761 1 0.13
Rotorcraft..... 2126 5 0.24
Other < 12,500. 36831 58 0.16
Other > 12,500. 5983 32 0.53
Amateur-built.. 2036 4 0.20
All ``Medical
Req.''........ 46976 99 0.21
------------------------------------------------------------------------
Data source: Ben Morrow (ACE-103)
This proposal would amend the regulations to permit qualified
airmen to operate U.S. registered general aviation airplanes for sport
and recreational purposes with self-certification medicals. Pilots
would also be permitted to receive appropriate instruction from
appropriately-rated individuals with an active interest in small
aircraft operated for sport and recreation. Current requirements for a
third class medical certificate for individuals engaged in recreational
flying in small, slow airplanes is without justification from a safety
standpoint. There is documented information that safety is not being
compromised by the operation of other recreational aircraft (such as
sailplanes and hot air balloons) as well as ultralight vehicles by
those not regulatorily encumbered by a requirement for a third class
medical certificate.
There is widespread concern about the current health and future
growth opportunities for sport and general aviation. Sport and general
aviation are the foundation of the entire air transportation system in
the United States. The activities of sport and general aviation provide
the support of the aviation infrastructure including maintenance,
airport operators, airport service companies (fixed base operators),
and the pipeline of requirement replacement parts. It is general and
sport aviation that provide the involvement of the majority of
individuals involved in aviation; provide the training necessary for
all segments of aviation, including business, corporate, commercial and
military aviation; and provide the proficiency for most flight
personnel.
Trends and statistics of new airplane manufacturing and pilot
certificates issued are well known to the FAA and to the aviation
community. These statistics along with a deteriorating condition of
airport facilities availability clearly show the current state of
affairs for general aviation.
Well publicized as contributing factors to this condition are
issues of product liability for aircraft and parts manufacturing, and
operating cost factors. Other major factors--not so well publicized--
are those of regulatory burden and costs. These regulatory costs
continue to increase through requirements for additional flight
training, mandatory equipment on aircraft, mandatory inspections and
airspace requiring avoidance which results in added flight time and
operating expense. All of these economic cost factors are doubly
burdensome on the recreational segment of general aviation since these
costs are not deductible or justified as a ``business expense.''
Opening the opportunity of flight through this amendment could assist
in reversing the negative trends in general aviation.
The Proposal
This NPRM proposes to amend part 61 of the FAR (14 CFR Part 61) to
permit student pilots seeking a recreational pilot certificate, the
holder of a recreational pilot certificate, and those appropriately
certificated pilots (private, commercial and airline transport pilot)
while exercising the privileges of a recreational pilot certificate to
operate U.S. registered general aviation aircraft (as limited by the
recreational pilot certificate) with at least a third class medical
certificate issued under part 67 of the FAR or to certify that he or
she has no known medical defects that makes him or her unable to pilot
an aircraft. Additionally, a certificated flight instructor with at
least a third class medical certificate issued under part 67 of the FAR
or certify that he or she has no known medical defects that makes him
or her unable to pilot an aircraft may give flight instruction to
student pilots seeking a recreational pilot certificate or the holder
of a recreational pilot certificate seeking advanced training.
The exercise of the recreational pilot privileges permitting flight
without the requirement for a third class medical certification will
continue to be very limited in scope. Section 61.101 ``Recreational
pilot privileges and limitations'' presently states:
(a) A recreational pilot may--
(1) Carry not more than one passenger; and
(2) Share the operating expenses of the flight with the passenger.
(3) Act as pilot-in-command of an aircraft only when--
(i) The flight is within 50 nautical miles of an airport at which
the pilot has received ground and flight instruction from an authorized
instructor certificated under this part;
(ii) The flight lands at an airport within 50 nautical miles of the
departure airport; and
(iii) The pilot carries, in that pilot's personal possession, a
logbook that has been endorsed by the instructor attesting to the
instruction required by paragraph (a)(3)(i) of this section.
(b) Except as provided in paragraphs (f) and (g) of this section, a
recreational pilot may not act as pilot-in-command of an aircraft--
(1) That is certificated--
(i) For more than four occupants;
(ii) With more than one powerplant;
(iii) With a powerplant of more than 180 horsepower; or
(iv) With retractable landing gear.
(2) That is classified as a glider, airship, or balloon;
(3) That is carrying a passenger or property for compensation or
hire;
(4) For compensation or hire;
(5) In furtherance of a business;
(6) Between sunset and sunrise;
(7) In airspace in which communication with air traffic control is
required;
(8) At an altitude of more than 10,000 feet MSL or 2,000 feet AGL,
whichever is higher;
(9) When the flight or surface visibility is less than 3 statute
miles;
(10) Without visual reference to the surface;
(11) On a flight outside the United States;
(12) To demonstrate that aircraft in flight to a prospective buyer;
(13) That is used in a passenger-carrying airlift and sponsored by
a charitable organization; and
(14) That is towing any object.
(c) A recreational pilot may not act as a required pilot flight
crew member on any aircraft for which more than one pilot is required
by the type certificate of the aircraft or the regulations under which
the flight is conducted, except when receiving flight instruction from
an authorized flight instructor on board an airship and no person other
than a required flight crew member is carried on the aircraft.
(d) A recreational pilot who has logged fewer than 400 flight hours
and who has not logged pilot-in-command time in an aircraft within the
preceding 180 days may not act as pilot-in-command of an aircraft until
the pilot has received flight instruction from an authorized flight
instructor who certifies in the pilot's logbook that the pilot is
competent to act as pilot-in-command of the aircraft. This requirement
can be met in combination with the requirements of section 61.56 and
61.57 at the discretion of the instructor.
(e) The recreational pilot certificate issued under this subpart
carries the notation ``Holder does not meet ICAO requirements.''
(f) For the purpose of obtaining additional certificates or
ratings, while under the supervision of an authorized flight
instructor, a recreational pilot may fly as sole occupant of an
aircraft--
(1) For which the pilot does not hold an appropriate category or
class rating;
(2) Within airspace that requires communication with air traffic
control; or
(3) Between sunset and sunrise, provided the flight or surface
visibility is at least 5 statute miles.
(g) In order to fly solo as provided in paragraph (f) of this
section, the recreational pilot must meet the appropriate aeronautical
knowledge and flight training requirements of section 61.87 for that
aircraft. When operating an aircraft under the conditions specified in
paragraph (f) of this section, the recreational pilot shall carry the
logbook that has been endorsed for each flight by an authorized pilot
instructor who--
(1) Has given the recreational pilot instruction in the make and
model of aircraft in which the solo flight is to be made;
(2) Has found that the recreational pilot has met the applicable
requirements of section 61.87; and
(3) Has found that the recreation pilot is competent to make solo
flights in accordance with the logbook endorsement.
(h) Notwithstanding paragraph 61.101(a)(3), a recreational pilot
may for the purpose of obtaining an additional certificate or rating,
while under the supervision of an authorized flight instructor, act as
pilot-in-command of an aircraft on a flight in excess of 50 nautical
miles from an airport at which flight instruction is received if the
pilot meets the flight training requirements of section 61.93 and in
that pilot's personal possession is the logbook that has been endorsed
by an authorized instructor attesting that:
(1) The recreational pilot has received instruction in solo cross-
country flight and the training described in section 61.93 applicable
to the aircraft to be operated, and is competent to make solo cross-
country flights in the make and model of aircraft to be flown, and
(2) The instructor has reviewed the student's preflight planning
and preparation for the specific solo cross-country flight and the
recreational pilot is prepared to make the flight safely under the
known circumstances and subject to any conditions listed in the logbook
by the instructor.
The only amendments to section 61.101 by this proposal would be to
provide for the removal of the 50 nautical mile limitation as an option
for the holder of a recreational pilot certificate. To remove this
limitation the recreational pilot would be required to meet the flight
training requirements of section 61.93, the aeronautical experience
requirements of sections 61.109(a) (1) and (b) or 61.113(a)(1) (i) and
(a)(2)(i), as appropriate, and receives and endorsement from an
authorized flight instructor in his or her logbook to remove the 50
mile limitation.
It is proposed that any certificated pilot exercising the flight
privileges of a recreational pilot certificate would be limited by the
privileges and limitations of a recreational pilot certificate. These
limitations provide an equivalent level of safety in that operations of
basic aircraft for sport and recreation only are permitted. Of course,
for those pilots who have received flight training and certification
for cross-country, night flight and flight into airspace requiring
communication with air traffic control--private, commercial and airline
transport--those specific recreational pilot limitations would not
apply.
EAA unequivocally states that this rulemaking does not promote the
operation of aircraft envisioned under this proposed amendment to part
61 could only arise out of the exercise of an FAA pilot certificate,
the customary self-certification of a proper physiological condition
prior to flight will ensure aircraft operations by only medically
qualified airmen. Further, the usual pilot-peer-group observation, as
well as typical FAA surveillance activities, will act as a cross-check
to identify the rare individual who, when not medically qualified,
might attempt to operate an aircraft.
EAA endorses and encourages all FAA enforcement efforts which
promote safe flying activities. Flying is a privilege which requires
responsibility on the part of the airmen. Historically, those who have
invested the time and money to earn an FAA Airman Certificate display
the responsibility to avoid operations which could lead to the loss of
that certificate. Those unwilling to act accordingly can lose their
privileges to FAA enforcement measures. While EAA promotes the
expansion of flying privileges to a greater number of participants, it
does not endorse flight by those medically unqualified to act as pilot-
in-command of an aircraft.
It should be specifically noted that the federal government, in
section 67.19(c), already acknowledges the need for a private pilot
``to accept reasonable risks to his or her person and property that is
not acceptable in the exercise of commercial or airline transport
privileges . . . '' Further, a pilot must ``self certify'' his or her
physiological condition for the safe conduct of each flight prior to
exercising the privileges of any pilot certificate. The immediate
proposal is based on these existing regulations.
Additional Issues and Statements
There are a number of issues concerning the subject of flight
instruction under this amendment. These include medical qualifications
of the individual providing the instruction, documentation for student
pilot certification and transition of an individual instructed only for
recreational pilot purposes to a fully-privileged private pilot.
There has been discussion as to what qualifications will be
necessary to provide instruction in this situation. This question has
arisen largely because: a number of sportplane models currently
undergoing FAA certification have been available in the past as ``two-
place ultralight trainers;'' and, under an exemption to the FARs for
flight instruction, individuals without an FAA flight instructor
certificate and FAA medical certificate have been permitted to provide
flight instruction.
Since under the amendments called for in this NPRM, the aircraft
will be a certificated airplane being operated by a certificated pilot
or candidate for a pilot's certificate, flight instruction would be
appropriately given an individual holding an FAA flight instructor
certificate. The medical certification of a flight instructor in this
situation will be as currently required by the FAR. Section 61.19(d)(1)
provides that ``a flight instructor certificate is effective only while
the holder has a current pilot certificate and a medical certificate
appropriate to the pilot privileges being exercised . . . '' Therefore,
an individual with a current CFI certificate, and otherwise
appropriately rated, but without a medical certificate, could provide
instruction to a candidate for a recreational pilot certificate or to
the holder of a recreational pilot certificate seeking additional
training. Additionally, current regulations permit that flight
instructions can be provided by a CFI without a valid medical
certificate if that instruction is being provided to a certificated
individual with a current medical certificate who is qualified to serve
as pilot-in-command of that aircraft. An example of this would be a
``make and model'' check-out or a biennial or annual flight review.
Further, this amendment would not preclude an individual from
providing ultralight vehicle flight instruction under an FAA-recognized
ultralight training program in a vehicle make and model identical to a
sportplane that is being operated legally as an ultralight vehicle
trainer. Therefore, this action should in no way affect the existence
of ultralight vehicle trainer. Therefore, this action should in no way
affect the existence of ultralight vehicle training opportunities for
individuals participating in any FAA-recognized ultralight training
programs.
As this amendment would eliminate the need for the paperwork
involved in the issuance of a third class medical, there would need to
be a method provided for documenting the student pilot status.
Currently a medical certificate (issued by an AME) has a dual purpose
of providing a student pilot's license after appropriate endorsements
by a flight instructor. A replacement of this method would have to be
provided. EAA recommends the system currently in place for sailplane
student pilots, with the student pilot license being issued by an FAA
inspector or designated pilot examiner.
The final issue is that of transition by an individual from
recreational pilot privileges to a private pilot certificate. Should an
individual desire to expand to the full privileges of a private pilot
(for example, to operate at night and/or in areas requiring
communication with air traffic control), additional flight instruction,
logbook entries and examination as currently delineated in the FARs
would be required. All instructional flight hours received and other
logged hours would be credited towards any regulations necessary to
provide for the additional privileges.
Regulatory Evaluation
Regulatory Evaluation Summary
This section summarizes the regulatory evaluation on the proposed
amendments to 14 CFR part 61--to provide expanded recreational flight
privileges. This summary and full regulatory evaluation quantify, to
the extent practicable, estimated costs to the private sector,
consumers, and Federal, State and local governments as well as
anticipated benefits.
Executive Order 12291, February 17, 1981, directs Federal agencies
to promulgate new regulations or modify existing regulations only if
potential benefits to society for each regulatory change outweighs
potential costs. The Executive Order requires the preparation of a
Regulatory Impact Analysis of all ``major'' rules except those
responding to emergency situations or other narrowly defined
emergencies. A ``major'' rule is one that is likely to result in an
annual effect on the economy of $100 million or more, a major increase
in consumer costs, or a significant adverse effect on competition, or
that is highly controversial.
This proposed rule is not ``major'' as defined in the Executive
Order; therefore, a full regulatory impact analysis that includes the
identification and evaluation of cost-reducing alternatives to this
proposed rule has not been prepared. This section contains a Regulatory
Flexibility Determination required by the Regulatory Flexibility Act
(P.L. 96-354) and an International Trade Impact Assessment.
Benefit Analysis
Activity under the amended regulation would be limited to
recreational pilot privileges and limitations. The equivalent level of
safety will be assured due to a number of factors:
The flight activities proposed compare reasonably with the
complexity of existing operations of hot air balloons, gliders and
motorized gliders--that is, for recreational purposes (and appropriate
flight instruction) only. Other private pilot, commercial and airline
transport pilot privileges include the opportunity for IFR operations
and operation of complex aircraft. These complexities which include
higher stress situations than recreational flying, would not be
permitted under the amended regulation; thereby ensuring a current
level of safety for those operations.
This amendment would permit holders of airman certificates
to operate airplanes of less complexity that are currently operated by
those same individuals. The amendment would permit certificated private
pilots, for example, to operate a simple, light sportplane or
equivalent without a valid third class medical certificate. The
complexity of the operation would, in fact, be limited by the
regulations governing recreational pilots. If such an individual does
hold an appropriate FAA medical certificate, they may exercise the full
privileges of their certificate in any aircraft in which they are
rated.
Operation under this amendment would be limited to sport
and recreational purposes only with the understanding that flight
instruction could be received by such an individual in furtherance of
these limited privileges.
An equivalent level of safety should also be evident since
the operation of mechanically similar two-seat aircraft has been
ongoing for a number of years (in ultralight flight training under
exemptions to Part 103 of the FAR) without any significant accident or
incidents caused by pilot incapacitation.
Further, safety would be enhanced as a result of the increased
flying that will be promoted by this regulatory relief. It is commonly
known that increased proficiency contributes to safe flight operations.
By the encouragement of more flight activity, this proposal will
improve aviation safety.
This amendment is in the public interest in that it serves as only
an option--not a requirement--for appropriately qualified individuals
to operate aircraft with specific limitations. In this regard, the
requested action would not serve as a burden nor infringement on any
other individual or group of individuals.
Finally, the amendment would be the opportunity to assist in the
revitalization of the economically distressed general aviation
industry. Singularly, the requested action will not fix all of general
aviation ills, however, in conjunction with and support of other
activities, such as the eminent availability of new aircraft models
under the primary category sportplane certification opportunities, the
proposal will serve a vital function in the larger picture of general
aviation revitalization. As noted earlier, general and sport aviation
are the foundation upon which the United States air transportation
system rests. This community provides the flight training, proficiency
and infrastructure support that comprise the total system. Additional
justification of the public value of healthy general aviation activity
in the United States can be found in the FAA's General Aviation Action
Plan.
Cost Analysis
Considerable regulatory and economic relief would be provided by
this amendment. It is conservatively estimated that ten percent of all
certificated pilots would take advantage of the reduced regulatory
burden of this amendment in exchange for the limited recreational
privileges. Assuming a third class medical examination to cost $50.00,
this amendment to the regulation would relieve $3.415 million in
regulatory cost every two years (based on 683,000 pilots).
Additionally, the thousands of pilots that have discontinued flying and
certificated flight instructors who have discontinued instructing over
the years for a variety of personal and fiscal reasons, may be
encouraged to return to the ranks of those enjoying flying as a
recreational outlet and teaching flying at that level. This would also
provide tens of thousands of dollars of regulatory relief per year.
Added public benefit would be gained by eventual reduction in FAA
manpower to administer the airmen medical certification records. While
this ``government cost savings may not occur during the near term,
eventually the rule change would reduce the administrative burden of
medical certification for certain limited flight activities thereby
reducing costs for the FAA.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-
511, there are no requirements for information collection associated
with this proposed rule.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) ensures that small
entities are not unnecessarily and disproportionately burdened by
Government regulations. The RFA requires agencies to review rules that
may have a significant economic impact on a substantial number of small
entities.
The small entities that this amendment could potentially affect are
the aviation service providers (fixed base operators) and suppliers of
general aviation parts. These providers and suppliers will be
positively affected by the increased flight activity that results from
this rulemaking. The additional requirement for replacement parts,
fuel, flight training and maintenance services will be a positive
economic benefit from the flight activity.
International Trade Impact Assessment
The proposed rule would have negligible effect on the sale of
foreign aviation products or services in the United States. However,
there could be a positive indirect impact on the sale of U.S. products
or services in foreign countries. This indirect benefit will result
from the positive impact this regulation will have on the fiscal health
of U.S. product and service providers as an outcome of increased flight
activity.
Federalism Implications
This proposed regulation would 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. Therefore, in accordance with
Executive Order 12612, preparation of a Federalism assessment is not
warranted.
Conclusion
In view of the overall benefit to aviation, EAA believes that the
proposed rule to provide expanded recreational flight privileges is
cost-beneficial. For the reasons discussed under ``Regulatory
Evaluation,'' EAA has determined that this proposed regulation is not a
``major rule'' under Executive Order 12291 and is not a ``significant
rule'' under DOT Regulatory Policies and Procedures (44 FR 11034;
February 26, 1979). It is certified that this proposal, if adopted,
would have a positive impact on a number of small entities.
A summary of the petitioner's proposed changes follows:
Sec. 61.3(c) Medical certificate. Except for free balloon
pilots piloting balloons, glider pilots piloting gliders, and pilots
piloting aircraft while exercising the privileges and limitations in
Sec. 61.101 for recreational pilot, no person may * * *
Sec. 61.83(c) Hold at least a current third-class medical
certificate issued under part 67 of this chapter, or, in the case of
glider or free balloon operations or while seeking a recreational
pilot certificate, certify that he or she has no known * * *
Sec. 61.85(b) An FAA operations inspector or designated pilot
examiner, accompanied by a current FAA medical certificate, or in
the case of an application for a glider or free balloon or
recreational pilot certificate it may be accompanied * * *
Sec. 61.96(c) Hold at least a current third-class medical
certificate issued under part 67 of this chapter or certify that he
or she has no known medical defect that makes him or her unable to
pilot the aircraft.
Sec. 61.103(3) Except as provided in paragraph (i) of this
section, act as pilot-in-command * * *
Sec. 61.101(i) Notwithstanding paragraph 61.101(a)(3), a
recreational pilot may operate an aircraft in excess of 50 nautical
miles without authorization by a flight instructor for each flight
when the pilot meets the flight training requirements of Sec. 61.93,
the aeronautical experience requirements of Sec. 61.109(a)(1) and
(b) or 61.113(a)(1)(i) and (a)(2)(1), as appropriate, and receives
an endorsement in his or her logbook to remove the 50 mile
limitation from an authorized flight instructor.
[FR Doc. 93-31871 Filed 12-30-93; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 93-31853 Rules of Origin Applicable to Imported Merchandise
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-31853]
[[Page Unknown]]
[Federal Register: January 3, 1994]
DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Parts 4, 10, 12, 102, 134, and 177
RIN 1515-AB19
Rules of Origin Applicable to Imported Merchandise
AGENCY: U.S. Customs Service, Department of the Treasury.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document proposes to amend the Customs Regulations to set
forth uniform rules governing the determination of the country of
origin of imported merchandise. These rules would codify existing
principles used for determining when under the customs laws an article
``is wholly the growth, product or manufacture'' of a country or when
an article is ``a new and different article'' [or article of commerce]
as a result of a manufacturing process in a given country. The proposed
rules are intended to codify the present country of origin rules in
order to provide rules that are more objective and transparent and
thereby to provide greater certainty and predictability for both the
trade community and the Customs Service in making country of origin
determinations required under existing laws and regulations.
DATES: Comments must be received on or before April 4, 1994.
ADDRESSES: Written comments (preferably in triplicate) may be addressed
to U.S. Customs Service, 1301 Constitution Avenue, NW., Franklin Court,
Washington, DC 20229, and they may be inspected at the Regulations
Branch located at 1099 14th St. NW., suite 4000, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Sandra L. Gethers, Office of
Regulations and Rulings (202-482-6980).
SUPPLEMENTARY INFORMATION:
Background
On September 25, 1991, a document was published in the Federal
Register (56 FR 48448) proposing to amend the Customs Regulations to
set forth a uniform rule governing the determination of the country of
origin of imported merchandise which is wholly obtained or produced in
a single country. The document also proposed to amend the Customs
Regulations to establish rules, for determining the country of origin
of imported goods, and solicited comments on those proposals. Customs
has refined the original proposal and has decided to issue this second
proposal regarding uniform rules for the determination of the country
of origin of imported merchandise.
All goods imported into the United States are subject to a
determination as to their country of origin because origin
determinations affect the treatment of imported goods under various
laws. Examples of laws that involve country of origin determinations
include laws regarding admissibility, duty assessment, country of
origin marking, and quota administration.
The rules of origin as historically applied in the United States
reflect tests and criteria developed through the years in judicial
decisions and in Customs interpretations of those judicial decisions.
In more recent years, the importance of rules of origin has been
demonstrated by the adoption of statutory or regulatory origin rules
applicable in specific contexts, including for purposes of government
procurement, certain duty-preference programs, and the U.S. textile
import program.
An article may be grown or mined or otherwise extracted from the
ground in a country and not be further processed prior to exportation.
Such an article is ``wholly the growth or product'' of that country and
as such has its origin in that country because it reflects no materials
or processing attributable to any other country. Similarly, an article
may be processed or manufactured exclusively in a country from
materials wholly grown or produced in that same country. In such a case
the article is ``wholly the product or manufacture'' of that country
and thus has its origin in that country because, again, it reflects no
materials or processing attributable to any other country. The U.S.
origin rule in these cases is expressed by the phrase ``wholly the
growth, product, or manufacture of a country'' (or ``wholly grown,
produced, or manufactured in a country'').
The more problematic origin determinations arise when an article is
not wholly the growth, product, or manufacture of a country. In these
other, more problematic determinations, the product in question
incorporates or reflects materials and/or processing which are
attributable to two or more countries. In such cases origin is
determined based on the effect of processing performed on materials or
articles which originated in another country. Under the current
judicially-developed test, a case-by-case determination is made as to
whether the processing is such that it results in a ``new and different
article'' (or ``new and different article of commerce'') having a ``new
name, character, and use'' which is different from that which existed
prior to the processing; Customs has expressed this test as the
``substantial transformation'' rule. Under this rule, the country of
origin of an imported article is considered to be the last country in
which a substantial transformation took place (in other words, the
country in which the imported article assumed its final and distinctive
identity prior to importation).
Notwithstanding the long history of the substantial transformation
rule, its administration has not been without problems. These problems
devolve from the fact that application of the substantial
transformation rule is on a case-by-case basis and often involves
subjective judgments as to what constitutes a new and different article
or as to whether processing has resulted in a new name, character, and
use. As a result, application of the substantial transformation rule
has remained essentially non-systematic in that a judicial or
administrative determination in one case more often than not has little
or no bearing on another case involving a different factual pattern.
Thus, while judicial and administrative decisions involving the
substantial transformation rule may have some value as restatements or
refinements of the basic rule, they are often of little assistance in
resolving individual cases involving the myriad of issues or tests that
have arisen, such as the distinction between producer's goods and
consumer's goods, the significance of further manufacturing or
finishing operations, and the issue of dedication to use. The very fact
that the substantial transformation rule has been the subject of a
large number of judicial and administrative determinations is testament
to the basic problem: The case-by-case approach, involving application
of the rule based on specific sets of facts, has led to varied case-
specific interpretations of the basic rule, resulting in a lack of
predictability which in turn has engendered a significant degree of
uncertainty both within Customs and in the trade community as regards
the effect that a particular type of processing should have on an
origin determination.
The United States-Canada Free-Trade Agreement (CFTA), Public Law
100-449, 102 Stat. 1851 (codified at 19 U.S.C. 2112 note), sets forth
rules for determining the origin of goods for purposes of duty
preference under the CFTA. Those rules, which are set forth in General
Note 3 HTSUS, and the rules of origin in Chapter 4 of the North
American Free Trade Agreement (NAFTA), which will supplant the CFTA
rules, provide that goods will have their origin (1) in the country in
which they are wholly obtained or produced, or (2) in the case of goods
not wholly obtained or produced in a country, in the country in which
they were transformed so as to be subject to a specified change in
tariff classification (with minimum value-added requirements applying
in addition to a tariff classification change in certain cases). The
change in tariff classification standard was specifically developed as
an alternative to the traditional substantial transformation rule in
order to obviate the problems described above. Customs believes that
rules based upon the change in tariff classification approach, would
provide by virtue of their greater specificity, more objectivity,
transparency, and predictability in origin determinations.
Consequently, Customs is proposing to adopt a system of country of
origin determination rules based on change in tariff classification
that would be applicable to all merchandise imported into the United
States. To that end, this document would amend interim regulations (19
CFR part 102) published in today's Federal Register, that follow the
change in tariff classification approach applicable to North American
products.
Discussion of Proposals
This document proposes to amend the interim regulations as set
forth in part 102 of the Customs Regulations, published elsewhere in
today's issue of the Federal Register, to make them uniformly
applicable to all merchandise imported into the United States. The
background section of the interim regulations as well as the regulatory
text of part 102, is applicable to this document. This document
proposes to amend Sec. 102.0 to set forth the scope of areas for which
the rules of origin set forth in part 102 are proposed to be used to
make country of origin determinations. These proposed rules of origin
will be applicable for all purposes for which the ``product of'' or
``country of origin'' criterion is prescribed by statute. As this
position would be consistent (except in the case of waste and scrap
which are treated as if they originated as raw materials) with the
position Customs has always taken regarding the concept of goods
``wholly grown, produced or manufactured'' in one country, including
under preferential trade arrangements, such as the Generalized System
of Preferences (GSP) and Caribbean Basin Initiative (CBI) statutes and
regulations, Customs proposes that this definition apply for all
purposes under the Customs and related laws and the navigation laws of
the United States (for example, for duty assessment and country of
origin marking purposes). Consequently, this document proposes to amend
all provisions where the phrase, ``wholly the growth, product or
manufacture'', or ``wholly obtained or produced'' or a similar phrase,
is used in the current regulations for origin purposes, by including
cross-references to the definition of ``wholly obtained or produced in
a country'' set forth in the proposed Sec. 102.1(g).
Moreover, since the new rules of origin include specific tariff
rules (tariff classification change and/or specific operations) which
codify the ``substantial transformation'' rule, i.e., the criteria for
determining whether a good has become a ``new and different article of
commerce'' as a result of a manufacturing process in a given country,
and provide the results that would be reached under a case-by-case
application of the substantial transformation rule, the new rules would
apply for all purposes where ``substantial transformation'' currently
is specified in the Customs Regulations as the test for determining
origin under Customs law. This does not include origin determinations
under antidumping, countervailing duty, or government procurement
statutes, although the authorities responsible for promulgating
determinations under those statutes may avail themselves of these rules
if they so choose. The proposed amendments to part 134 concerning
country of origin marking also clarify that the substantial
transformation rule currently used for identifying an ultimate
purchaser is the same rule that is used for determining the country of
origin of a foreign article imported into the United States. Proposed
changes were also made to parts 4, 10, 12, and 177, Customs Regulations
(19 CFR parts 4, 10, 12, and 177).
The Interim Regulations set forth in Part 102 also are proposed to
be used to determine whether a good meets the ``product of'' criterion
for receiving duty preferences under General Note 3(a)(iv), 3(c)(ii),
(viii), (ix) (Insular Possessions, Generalized System of Preferences
(GSP), Caribbean Basin Economic Recovery Act (CBERA), Freely Associated
States, Andean Trade Preferences Act (ATPA) and following bilateral
consultations now underway, under General Note 3(c)(vi) [the United
States-Israel Free-Trade Agreement]. The value content requirements
under these provisions, however, must still be met in order for a good
to qualify for the duty preference.
Comments
Before adopting the proposed amendments, consideration will be
given to any written comments (preferably in triplicate) timely
submitted to Customs. Comments submitted will be available for public
inspection in accordance with the Freedom of Information Act (5 U.S.C.
552), and applicable Treasury Department Regulations (31 CFR 1.4) and
Customs Regulations (19 CFR 103.11(b)), on normal business days between
the hours of 9 a.m. and 4:30 p.m. at the Regulations and Disclosure Law
Branch.
Comments submitted in response to this Federal Register document,
need not be duplicated in response to the Interim Rulemaking document
relating to the Rules of Origin for the NAFTA published in today's
Federal Register. Comments in response to one document will be
considered during the review of both documents.
Executive Order 12866
This document does not meet the criteria for a ``significant
regulatory action'' as specified in E.O. 12866.
Regulatory Flexibility Act
Pursuant to the provisions of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), it is certified that the proposed regulations
amendments will not have a significant economic impact on a substantial
number of small entities. Accordingly, the proposed amendments are not
subject to the regulatory analysis or other requirements of 5 U.S.C.
603 and 604.
List of Subjects
19 CFR Part 4
Customs duties and inspection, Freight, Harbors, Imports, Maritime
carriers, Reporting and recordkeeping requirements, Vessels.
19 CFR Part 10
Customs duties and inspection, Imports, Reporting and recordkeeping
requirements.
19 CFR Part 12
Customs duties and inspection, Labeling, Marking, Reporting and
recordkeeping requirements, Textiles and textile products.
19 CFR Part 102
Customs duties and inspections, Imports, Reporting and
recordkeeping requirements, Rules of origin, Trade agreements.
19 CFR Part 134
Country of origin, Customs duties and inspections, Imports,
Labeling, Marking, Packaging and containers.
19 CFR Part 177
Administrative practice and procedures, Customs duties and
inspection, Imports, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, it is proposed to amend Chapter I of Title 19, Code of
Federal Regulations (19 CFR Chapter I), by amending parts 4, 10, 12,
102, 134, and 177 as set forth below:
PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES
1. The general authority citation for part 4 continues to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1624; 46 U.S.C. App. 3.
2. Section 4.80b is amended by adding a sentence at the end of
paragraph (a) to read as follows:
Sec. 4.80b Coastwise transportation of merchandise.
(a) * * * For purposes of determining whether merchandise is
manufactured or processed into a new and different product under this
section, the rules set forth in part 102 of this chapter (regarding the
determination of whether goods are substantially transformed in a
country) shall apply.
* * * * *
PART 10--ARTICLES CONDITIONALLY FREE, SUBJECT TO A REDUCED RATE,
ETC.
1. The general authority citation for Part 10 continues to read as
follows:
Authority: 19 U.S.C. 66, 1202, 1481, 1484, 1498, 1508, 1623,
1624;
2. Section 10.12 is amended by revising the last sentence of
paragraph (e) to read as follows:
Sec. 10.12 Definitions.
* * * * *
(e) * * * If the article consists wholly or partially of foreign
components or materials, the manufacturing process must be such that
the foreign components or materials have been substantially transformed
as provided in Sec. 10.14(b) of this part.
3. Section 10.14 is amended by revising the text in paragraph (b)
preceding the examples to read as follows:
Sec. 10.14 Fabricated components subject to the exemption.
* * * * *
(b) Substantial transformation of foreign-made articles or
materials. Foreign-made articles or materials will become products of
the United States if they undergo a process of manufacture in the
United States which results in their substantial transformation.
Substantial transformation occurs when under part 102 of this Chapter,
the country of origin of a good which is produced in the United States
from foreign materials is determined to be the United States.
* * * * *
4. Section 10.171 is amended by adding a new paragraph (c) to read
as follows:
Sec. 10.171 General.
* * * * *
(c) Wholly the growth, product, or manufacture defined. For
purposes of Secs. 10.171 through 10.178, the expression ``wholly the
growth, product, or manufacture'' refers to articles and materials
wholly obtained or produced within the meaning of Sec. 102.1(g) of this
chapter.
5. Section 10.176(a) is revised to read as follows:
Sec. 10.176 Country of origin criteria.
(a) Any article which is (1) either wholly the growth, product, or
manufacture of a beneficiary developing country or of any two or more
countries which are members of the same association of countries, or a
new or different article of commerce which has been grown, produced, or
manufactured in a beneficiary developing country and (2) imported
directly from such beneficiary developing country or member countries,
may qualify for duty-free entry under the Generalized System of
Preferences (GSP). However, duty free entry under GSP may be accorded
only if: (i) The sum of the cost or value of the materials produced in
the beneficiary developing country or any two or more countries which
are members of the same association of countries which is treated as
one country under section 502(a)(3), Trade Act of 1974, as amended (19
U.S.C. 2462(a)(3)), plus (ii) the direct costs of processing operations
performed in such beneficiary developing country or member countries,
is not less than 35 percent of the appraised value of the article at
the time of its entry into the customs territory of the United States.
For purposes of this section, a ``new and different article of
commerce'' exists when under part 102 of this Chapter, the country of
origin of a good, which is produced in a beneficiary developing country
from foreign materials, is determined to be that beneficiary developing
country.
* * * * *
6. Section 10.191 is amended by revising paragraph (b)(3) to read
as follows:
Sec. 10.191 General.
* * * * *
(b) Definitions.
* * * * *
(3) Wholly the growth, product, or manufacture. For purposes of
Sec. 10.191 through Sec. 10.198, the expression ``wholly the growth,
product, or manufacture'' refers to articles and materials wholly
obtained or produced within the meaning of Sec. 102.1(g) of this
chapter.
* * * * *
7. Section 10.195 is amended by adding a statement at the end of
the existing text in paragraph (a)(1) to read as follows:
Sec. 10.195 Country of origin criteria.
(a) Articles produced in a beneficiary country--
(1) * * * For purposes of this section, a ``new and different
article of commerce'' exists when under part 102 of this Chapter, the
country of origin of a good, which is produced in a beneficiary country
from foreign materials, is determined to be that beneficiary country.
* * * * *
PART 12--SPECIAL CLASSES OF MERCHANDISE
1. The general authority citation for part 12 continues to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 8,
Harmonized Tariff Schedule of the United States (HTSUS)), 1304,
1624.
2. Section 12.130 is amended by removing paragraphs (d) and (e) and
redesignating paragraphs (f) through (i) as paragraphs (d) through (g),
and by revising paragraph (b) to read as follows:
Sec. 12.130 Textiles and textile products country of origin.
* * * * *
(b) Country of origin. For the purpose of this section and except
as provided in paragraph (c) a textile or textile product, subject to
section 204, Agricultural Act of 1956, as amended, imported into the
customs territory of the United States shall be a product of a
particular foreign territory or country, insular possession of the
U.S., if it is wholly obtained or produced (as defined under
Sec. 102.1(g), part 102, of this Chapter) in that foreign territory or
country, or insular possession. However, except as provided in
paragraph (c), a textile or textile product, subject to section 204,
which consists of materials produced or derived from, or processed in,
more than one foreign territory or country, or insular possession of
the U.S., shall be a product of that foreign territory or country, or
insular possession where it last underwent a substantial
transformation. A textile or textile product will be considered to have
undergone a substantial transformation when under part 102 of this
Chapter, the country of origin of a good, which is produced in a
country from foreign materials, is determined to be that country.
* * * * *
PART 102--NON-PREFERENCE RULES OF ORIGIN
1. The authority citation for part 102 continues to read as
follows:
Authority: 19 U.S.C. 66, 1202 (General Note 8, Harmonized Tariff
Schedule of the United States (HTSUS)), 1624, and the North American
Free-Trade Agreement Implementation Act, Pub.L. 103-182, 107 Stat.
2057.
2. Section 102.0 is revised to read as follows:
Sec. 102.0 Scope.
This part sets forth rules for determining the country of origin of
imported goods for purposes of the Customs and related laws and the
navigation laws of the United States. The rules in this part regarding
goods wholly obtained or produced in a country are intended to apply
for all such purposes. The rules in this part which determine when a
good becomes a new and different article or a new or different article
of commerce as a result of manufacturing processes in a given country,
also are intended to apply for all purposes where this requirement
exists for ``country of origin'' or ``product of'' determinations under
the Customs laws. The rules in this part also will be applied by the
United States for determining when a good is a good of a North American
Free-Trade Agreement (NAFTA) country for the purposes specified under
Annex 311 of the NAFTA.
PART 134--COUNTRY OF ORIGIN MARKING
1. The authority citation for part 134 continues to read as
follows:
Authority: 5 U.S.C. 301, 19 U.S.C. 66, 1202 (General Note 8,
Harmonized Tariff Schedule of the United States (HTSUS)), 1304,
1624.
2. Section 134.1 is amended by revising paragraph (b);
redesignating current paragraphs (d) through (f) as (e) through (g);
adding a new paragraph (d); and revising newly designated paragraphs
(e) (1) and (2) to read as follows:
Sec. 134.1 Definitions.
* * * * *
(b) Country of origin. ``Country of origin'', when used with
reference to any article of foreign origin imported into the United
States, means the country in which the article was wholly obtained or
produced within the meaning of Sec. 102.1(e) of this chapter, or, in
the case of an article not wholly obtained or produced in one country,
the country where the article last underwent a substantial
transformation prior to its importation into the United States.
* * * * *
(d) Substantial transformation. ``Substantial transformation''
occurs when, under part 102 of this Chapter, the country of origin of a
good, which is produced in a country from foreign materials, is
determined to be that country.
(e) Ultimate purchaser. * * *
(1) If an imported article will be used in further processing, the
processor will be the ``ultimate purchaser'' if he subjects the
imported article to a process which results in a substantial
transformation of the article.
(2) If the process does not result in a substantial transformation
of the imported article, the consumer or user of the article, who
obtains the article after the processing, will be regarded as the
``ultimate purchaser.''
* * * * *
3. Section 134.35 is revised to read as follows:
Sec. 134.35 Articles substantially transformed after importation.
If an imported article will be used in further processing in the
United States, the processor will be considered the ultimate purchaser
if such article is determined to be a good of the United States under
part 102 of this Chapter. In such a case, the imported article is
excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(D)
and Sec. 134.32(d) of this part, provided the container in which it is
imported will reasonably indicate the country of origin of the article
to the ultimate purchaser.
PART 177--ADMINISTRATIVE RULINGS
1. The general authority citation for part 177 continues to read as
follows:
Authority: 5 U.S.C. 301, 19 U.S.C. 66, 1202 (General Note 8,
Harmonized Tariff Schedule of the United States), 1624, unless
otherwise noted.
Sec. 177.22 [Amended]
2. Section 177.22(a) is amended by adding at the end the following
sentence: ``The expression ``wholly the growth, product, or
manufacture'' refers to articles wholly obtained or produced within the
meaning of Sec. 102.1(g) of this chapter.''
Approved: December 17, 1993.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
George J. Weise,
Commissioner of Customs.
[FR Doc. 93-31853 Filed 12-30-93; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 93-31152 Amendment of FIRMR Provisions Relating to FIRMR Applicability, FIRMR Bulletins, Present Value Analysis, and Recycled Federal Information Processing (FIP) Resources
[Federal Register Volume 59, Number 1 (Monday, January 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-31152]
[[Page Unknown]]
[Federal Register: January 3, 1994]
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GENERAL SERVICES ADMINISTRATION
41 CFR Parts 201-1, 201-3, 201-20, and 201-39
RIN 3090-AF04
Amendment of FIRMR Provisions Relating to FIRMR Applicability,
FIRMR Bulletins, Present Value Analysis, and Recycled Federal
Information Processing (FIP) Resources
AGENCY: Information Resources Management Service, GSA.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend the Federal Information
Resources Management Regulation (FIRMR) to: Revise FIRMR applicability
provisions relating to the replacement of embedded Federal information
processing (FIP) equipment, the delivery of a small amount of FIP
resources under non-FIP procurements, and the availability of guidance
on interpreting FIRMR applicability provisions; explain the
nonmandatory nature of FIRMR bulletins; and require the use of OMB
Circular A-94 in performing present value analysis when evaluating bids
and proposals.
DATES: Comment are due March 4, 1994.
ADDRESSES: Comments may be mailed to GSA/KMR, 18th and F Streets, NW.,
room 3224, Washington, DC 20405, Attn: Anne Horth, or delivered to that
address between 8 a.m. and 4:30 p.m.
FOR FURTHER INFORMATION CONTACT:
Anne Horth, GSA, Office of Information Resources Management Policy,
Regulations Analysis Division (KMR), 18th and F Streets, NW., room
3224, Washington, DC 20405, telephone FTS/Commercial (202) 501-0960 (v)
or (202) 501-0657 (tdd).
SUPPLEMENTARY INFORMATION: (1) Part 201-1 and subpart 201-39.1 are
being amended to revise FIRMR provisions regarding applicability.
Currently, FIRMR applicability extends to the acquisition of FIP
equipment embedded in other products. Agencies have questioned whether
such acquisitions should be applicable, given that the FIRMR was not
applicable to the initial acquisition and the FIP equipment will only
be put back in the original excepted produce. Accordingly, the FIRMR is
being revised to grant an exception to FIRMR applicability for the
replacement of any FIP equipment in a product that has already been
granted an exception under Sec. 201-1.002-2(e). FIP software or related
supplies used in the embedded FIP equipment is also being exempted for
FIRMR coverage.
Another issue creating confusion relates to the delivery of FIP
resources. Now, the FIRMR applies whenever FIP resources are delivered
to a Federal agency or users designated by the agency. Problems have
arisen when the solicitation or contract is primarily for other than
FIP resources, but FIP resources are also being delivered. The FIRMR
currently always applies to the acquisition of the FIP resources, no
matter how small the amount of FIP resources being delivered. Given the
legislative exceptions for FIP resources that are not ``significant''
or are ``incidental to the performance of a Federal contract,'' GSA
believes that a FIRMR exception would also be appropriate for
acquisitions of FIP resources with a relatively low dollar value when
the solicitation or contract is predominantly for non-FIP resources.
Accordingly, the FIRMR is being revised to except such acquisitions
when the value of the FIP resources does not exceed $500,000.
A new Sec. 201-1.002-3 is being added to show that guidance on
understanding FIRMR applicability provisions is available in FIRMR
Bulletin A-1. Some agencies have asked for additional information on
how to interpret FIRMR applicability provisions because they have been
unaware of the existence of the guidance already available in Bulletin
A-1. The addition of this section will correct that deficiency.
(2) Subpart 201-3.001 is being amended to explain the nonmandatory
nature of FIRMR bulletins. There is a perception, among some users of
the FIRMR, that FIRMR bulletins are regulatory in nature. FIRMR
bulletins are not regulatory. They are issued to: provide information
and guidance that helps agencies acquire or manage FIP resources;
explain procedures for using GSA programs; and assist in interpreting
the provisions of the Brooks Act.
(3) Sections 201-20.203-2, 201-39.14-1 and 201-39.1501-1 are being
amended to reflect the fact that OMB Circular No. A-94 will now be used
not only as the basis of analyzing the cost of each alternative when
doing analyses of alternatives, but also in calculating bid and
proposal prices/costs. Heretofore, OMB Circular No. A-94 has only been
used to perform analyses of alternatives and the guidance in OMB
Circular No. A-104 has been used in the evaluation of bids and
proposals. OMB A-104 has been rescinded, and OMB A-94 has been revised
to provide for making both types of determinations.
(4) GSA has determined that this rule is not a significant rule for
the purposes of Executive Order 12866 of October 4, 1993, because it is
not likely to result in any of the impacts noted in Executive Order
12866, affect the rights of specified individuals, or raise issues
arising from the policies of the Administration. GSA has based all
administrative decisions underlying this rule on adequate information
concerning the need for and consequences of this rule; has determined
that the potential benefits to society from this rule outweigh the
potential costs; has maximized the net benefits; and has chosen the
alternative approach involving the least net cost to society.
List of Subjects in 41 CFR Parts 201-1, 201-3, 201-20, and 201-39.
Archives and records, Computer technology, Telecommunications,
Government procurement, Property management, Records management, and
Federal information processing resources activities.
Accordingly, 41 CFR parts 201-1, 201-3, 201-20 and 201-39 are
proposed to be amended as follows:
PART 201-1--APPLICABILITY AND AUTHORITY
1. The authority citation for part 201-1 continues to read as
follows:
Authority: 40 U.S.C. 486(c) and 751(f)
2. Section 201-1.002-2 is amended by revising Sec. 201-1.002-2(c)
and adding new Sec. 201-1.002-2(f) as follows:
Sec. 201-1.002-2 Exceptions.
* * * * *
(c) When both FIP and other resources are being acquired under the
same solicitation or contract and the FIRMR applies to the solicitation
or contract, the FIRMR applies only to the FIP resources. However, the
FIRMR does not apply to solicitations and contracts predominantly for
non-FIP resources when the dollar value of the FIP resources does not
exceed $500,000.
* * * * *
(f) The FIRMR does not apply to the acquisition, management, and
use of FIP resources that will be used in or as embedded FIP equipment
in products excepted from FIRMR coverage under Sec. 201-1.002-2(e),
including replacement FIP resources.
3. A new Sec. 201-1.002-3 is added as follows:
Sec. 201-1.002-3 Procedures.
FIRMR Bulletin A-1 provides an analytical framework and examples
for use in determining whether the FIRMR applies to an acquisition.
Agencies should use this bulletin to assist them in understanding FIRMR
applicability provisions.
PART 201-3--THE FIRMR SYSTEM
4. The authority citation for part 201-3 continues to read as
follows:
Authority: 40 U.S.C. 486(c) and 751(f).
5. Section 201-3.001 is amended by revising Sec. 201-3.001(b)(1) to
read:
Sec. 201-3.001 General.
* * * * *
(b) * * *
(1) FIRMR bulletins contain guidance and information on various
information resources management subjects. FIRMR bulletins do not
constitute binding authority, but should be used as an aid in
understanding GSA programs and the FIRMR. FIRMR bulletins are published
in appendix B of the looseleaf edition of the FIRMR and are available
along with the FIRMR from GPO by subscription or on GSA's CD-ROM.
* * * * *
PART 201-20--ACQUISITION
6. The authority citation for part 201-20 continues to read as
follows:
Authority: 40 U.S.C. 486(c) and 751(f).
7. Section 201-20.203-2 is amended by revising Sec. 201-20.203-2(c)
as follows:
Sec. 201-20.203-2 Cost for each alternative.
* * * * *
(c) Agencies shall follow guidance in OMB Circular No. A-94,
Revised Transmittal Memorandum No. 64, ``Benefit-Cost Analysis of
Federal Programs; Guidelines and Discounts,'' when calculating the cost
of each alternative.
PART 201-39--ACQUISITION OF FEDERAL INFORMATION PROCESSING
RESOURCES (FIP) BY CONTRACTING
8. The authority citation for part 201-39 continues to read as
follows:
Authority: 40 U.S.C. 486(c) and 751(f).
9. Section 201-39.101-3 is amended by revising Sec. 201-39.101-
3(b)(3) and adding a new Sec. 201-39.101-3(b)(6) as follows:
Sec. 201-39.101-3 Applicability.
* * * * *
(b) Exceptions.
* * * * *
(3) When both FIP and other resources are being acquired under the
same solicitation or contract and the FIRMR applies to the solicitation
or contract, the FIRMR applies only to the FIP resources. However, the
FIRMR does not apply to solicitations and contracts predominantly for
non-FIP resources when the dollar value of the FIP resources does not
exceed $500,000.
(6) The FIRMR does not apply to the acquisition, management, and
use of FIP resources that will be used in or as embedded FIP equipment
in products excepted from FIRMR coverage under Sec. 201-1.002-2(e),
including replacement FIP equipment.
* * * * *
10. Section 201-39.1402-1 is amended by revising paragraph (b) to
read as follows:
Sec. 201-39.1402-1 Policies.
* * * * *
(b) When payments are expected to vary among the alternatives being
considered, or where payments will be made over an extended period,
agencies shall consider the need to adjust all prices and costs to
present value and apply the results in source selection. Agencies
should follow the guidance in OMB Circular A-94 regarding present value
calculations.
11. Section 201-39.1501-1 is amended by revising Sec. 201-39.1501-
1(b) to read as follows:
Sec. 201-39.1501-1 Policies.
(b) When payments are expected to vary among the alternatives being
considered, or where payments will be made over an extended period,
agencies shall consider the need to adjust all prices and costs to
present value and apply the results in source selection. Agencies
should follow the guidance in OMB Circular A-94 regarding present value
calculations.
Dated: December 10, 1993.
Francis A. McDonough,
Assistant Commissioner for Federal Information Resources Management.
[FR Doc. 93-31152 Filed 12-30-93; 8:45 am]
BILLING CODE 6820-25-M
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