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Code · REGISTER · 2008-03-12 · Nuclear Regulatory Commission · Proposed Rules

Proposed Rules. Availability of preliminary draft rule language

47,960 words·~218 min read·/register/2008/03/12/08-1016

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 3510-22-S 73 49 Wednesday, March 12, 2008 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 RIN 3150-AI10 Enhancements to Emergency Preparedness Regulations AGENCY: Nuclear Regulatory Commission. ACTION: Availability of preliminary draft rule language. SUMMARY: The Nuclear Regulatory Commission
(NRC)staff is making available preliminary draft rule language that would constitute amendments to its regulations on emergency preparedness (EP). The release of the preliminary draft requirements is intended to inform stakeholders of the current status of the NRC's activities on its EP rulemaking. The goal of this rulemaking is to enhance EP regulations based on operating experience and the post-September 11, 2001, threat environment. The Commission has not reviewed the preliminary draft rule language, and this preliminary draft rule language may be subject to significant revisions during the rulemaking process. DATES: The NRC is not soliciting formal public comments on the preliminary draft rule language at this time. Comments can be submitted for NRC consideration in the development of the proposed rule through the *www.regulations.gov* Web site until July 1st, 2008. There will be an opportunity for formal public comment on the proposed rule when the notice of proposed rulemaking is published in the **Federal Register** . ADDRESSES: The preliminary draft rule language can be viewed and downloaded electronically via the Federal rulemaking Web site at *www.regulations.gov* and can be found by searching under Docket ID no. NRC-2008-0122. Along with any publicly available documents related to this rulemaking, the draft information may be viewed electronically on public computers in the NRC's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Room O-1 F21, and open to the public on Federal workdays from 7:45 a.m. until 4:15 p.m. The PDR reproduction contractor will make copies of documents for a fee. FOR FURTHER INFORMATION CONTACT: Lauren Quinones-Navarro, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-2007, e-mail, *lqn@nrc.gov;* or Kathryn Brock, Office of Nuclear Security and Incident Response, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-2015, e-mail, *kmb3@nrc.gov.* SUPPLEMENTARY INFORMATION: The NRC staff is making a preliminary version of the draft proposed rule language available to inform stakeholders of the current status of the NRC's EP rulemaking effort. The staff recognizes that security-based events differ from accidental events at nuclear power plants and that EP regulations and guidance could be enhanced to better reflect the security elements in these regulations. Additionally, the NRC staff has determined that other aspects of the EP regulations could be enhanced based on years of EP inspection program implementation and stakeholder input. The rulemaking would codify security-based response elements of NRC Bulletin 2005-02, “Emergency Preparedness and Response Actions for Security-Based Events.” It would also enhance other key EP regulations in the areas of NRC-evaluated biennial exercises, emergency response organization staffing, emergency response facilities and equipment, and emergency plan maintenance and implementation. The Commission paper (SECY-06-0200) which provided the results of the NRC staff review of the NRC's EP program and its recommendations regarding proposed enhancements to the EP regulations and guidance may be found at the NRC public Web site at *http://www.nrc.gov/reading-rm/doc-collections/commission/secys/2006/secy2006-0200/2006-0200scy.pdf.* The Rulemaking Plan concerning the revision of EP regulations and guidance may be found at *http://www.nrc.gov/about-nrc/regulatory/rulemaking/rulemaking-plans.html.* Dated at Rockville, Maryland, this 29th day of February, 2008. For the Nuclear Regulatory Commission. Arlon Costa, Chief, Financial Policy and Rulemaking Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation. [FR Doc. E8-4899 Filed 3-11-08; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0284; Directorate Identifier 2008-CE-006-AD] RIN 2120-AA64 Airworthiness Directives; Cirrus Design Corporation Model SR20 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain Cirrus Design Corporation
(CDC)Model SR20 airplanes. This proposed AD would require an inspection and replacement as necessary of the heat exchanger. This proposed AD results from the discovery of engine exhaust fumes in the cabin of CDC Model SR20 airplanes. We are proposing this AD to detect and correct leaks in the exhaust system, which could result in exhaust gases leaking into the cabin heating system. This condition could lead to carbon monoxide in the cabin and incapacitation of the pilot. DATES: We must receive comments on this proposed AD by May 12, 2008. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Cirrus Design Corporation, 4515 Taylor Circle, Duluth, Minnesota 55811, telephone:
(218)788-3000. FOR FURTHER INFORMATION CONTACT: Michael Downs, Aerospace Engineer, 2300 East Devon Avenue, Room 107, Des Plaines, Illinois 60018; telephone:
(847)294-7870; fax:
(847)294-7834. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2008-0284; Directorate Identifier 2008-CE-006-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion We received a report from the operator of a fleet of CDC Model SR20 airplanes that an exhaust leak was discovered in the cabin on one of the fleet airplanes. Failure of a spot weld that secures the heater shroud to the muffler caused the exhaust leak. Inspection of the operator's total fleet of 40 airplanes found 24 more airplanes with defective spot welds. One of these defective welds was leaking exhaust into the cabin heating system. This condition, if not corrected, could lead to carbon monoxide in the cabin and incapacitation of the pilot. Relevant Service Information We have reviewed Cirrus Service Bulletin SB 2X-78-07 R1, Revision 1, dated December 18, 2007. The service information describes procedures for: • Pressurization check of the heat exchanger; • Installation of an improved heat exchanger if broken welds or exhaust leaks are found; and • Repetitive 100-hour pressurization checks. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require an inspection and replacement as necessary of the exhaust system. Costs of Compliance We estimate that this proposed AD would affect 713 airplanes in the U.S. registry. We estimate the following costs to do the proposed inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 1 work-hour × $80 per hour = $80 $0 $80 $57,040 We estimate the following costs to do any necessary replacement that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need this replacement: Labor cost Parts cost Total cost per airplane 1 work-hour × $80 per hour = $80 $848 $928 Warranty credit will be given to the extent specified in Cirrus Service Bulletin SB 2X-78-07 R1, Revision 1, dated December 18, 2007. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5527) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Cirrus Design Corporation:** Docket No. FAA-2008-0284; Directorate Identifier 2008-CE-006-AD. Comments Due Date
(a)We must receive comments on this airworthiness directive
(AD)action by May 12, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Model SR20 airplanes, serial numbers 1005 through 1815, that are certificated in any category. Unsafe Condition
(d)This AD results from the discovery of engine exhaust fumes in the cabin of Cirrus Design Corporation Model SR20 airplanes. We are proposing this AD to detect and correct leaks in the exhaust system, which could result in exhaust gases leaking into the cabin heating system. This condition could lead to carbon monoxide in the cabin and incapacitation of the pilot. Compliance
(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures
(1)Perform a pressurization check on the exhaust system Initially within the next 25 hours time-in-service
(TIS)after the effective date of this AD or within the next 3 months after the effective date of this AD, whichever occurs first. Repetitively thereafter at intervals not to exceed every 100 hours TIS Follow Cirrus Service Bulletin SB 2X-78-07 R1, Revision 1, dated December 18, 2007.
(2)If the exhaust system is found defective during any check required in paragraph (e)(1) of this AD or an exhaust odor is detected inside the airplane cabin, replace the heat exchanger weldment and shroud with new improved heat exchanger weldment and new shroud Before further flight after the effective date of this AD Follow Cirrus Service Bulletin SB 2X-78-07 R1, Revision 1, dated December 18, 2007. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Chicago Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Michael Downs, Aerospace Engineer, Chicago ACO, 2300 East Devon Avenue, Room 107, Des Plaines, Illinois 60018; telephone:
(847)294-7870; fax:
(847)294-7834. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Related Information
(g)To get copies of the service information referenced in this AD, contact Cirrus Design Corporation, 4515 Taylor Circle, Duluth, Minnesota 55811, telephone:
(218)788-3000. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://www.regulations.gov* . Issued in Kansas City, Missouri, on March 4, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-4864 Filed 3-11-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2008-0111; Airspace Docket No. 08-AAL-6] Proposed Revocation of Area Navigation Jet Routes J-889R and J-996R; Alaska AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA is proposing to remove two Area Navigation
(RNAV)Jet Routes designated as Jet Route J-888R and J-996R in Alaska. These routes transiting between Anchorage, and Bethel, AK, and Cape Newenham, and Anchorage, AK, respectively, are no longer required for routings provided by the Anchorage Air Route Traffic Control Center (ARTCC). DATES: Comments must be received on or before April 28, 2008. ADDRESSES: Send comments on this proposal to the, U.S. Department of Transportation, Docket Operations, M-30, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; telephone:
(202)366-9826. You must identify FAA Docket No. FAA-2008-0111 and Airspace Docket No. 08-AAL-6 at the beginning of your comments. You may also submit comments through the Internet at *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Ken McElroy, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA-2008-0111 and Airspace Docket No. 08-AAL-6) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at *http://www.regulations.gov.* Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2008-0111 and Airspace Docket No. 08-AAL-6.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Availability of NPRM's An electronic copy of this document may be downloaded through the Internet at *http://www.regulations.gov.* Recently published rulemaking documents can also be accessed through the FAA's Web page at *http://www.faa.gov* or the **Federal Register** 's Web page at *http://www.gpoaccess.gov/fr/index.html.* You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Regional Air Traffic Division, Federal Aviation Administration, Alaska Flight Service Operations, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking,
(202)267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. The Proposal The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to remove two RNAV Jet Routes designated as J-888R and J-996R in Alaska. The Anchorage ARTCC has requested that these two Jet Routes be removed from the National Airspace System because they are no longer being used. The first route is J-888R from AMOTT (near Anchorage, AK) and ends at OZZIE south of Bethel, AK. The second route is J-996R from Cape Newenham, AK, and ends at AMOTT near Anchorage, AK. Alaska Area Navigation routes are published in paragraph 2005 of FAA Order 7400.9R signed August 15, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The Alaska Area Navigation routes listed in this document will be subsequently removed in the Order. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under Department of Transportation
(DOT)Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it proposes to remove Class E airspace from the Federal Airway system within the State of Alaska and represents the FAA's continuing effort to safely and efficiently use the navigable airspace. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9R, Airspace Designations and Reporting Points, signed August 15, 2007, and effective September 15, 2007, is to be amended as follows: Paragraph 2005 Alaska Area Navigation Routes. J-888R [Remove] J-996R [Remove] Issued in Washington, DC, March 3, 2008. Ellen Crum, Acting Manager, Airspace and Rules Group. [FR Doc. E8-4929 Filed 3-11-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [USCG-2008-0049] RIN 1625-AA09 Drawbridge Operation Regulations; Gulf Intracoastal Waterway (GIWW), mile 49.8, near Houma, Lafourche Parish, LA AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to change the regulation governing the operation of the SR 316 Blue Bayou Pontoon Bridge across the Gulf Intracoastal Waterway, mile 49.8, near Houma, Lafourche Parish, Louisiana. Currently the bridge opens on signal, but due to high vehicular traffic and school bus traffic Lafourche Parish requested this change. The proposed rule will require the draw of the bridge to open on signal except during the regular school year on Monday through Friday, except Federal holidays, from 7 a.m. to 8:30 a.m., from 2 p.m. to 4 p.m., and from 4:30 p.m. to 5:30 p.m. DATES: Comments and related material must reach the Coast Guard on or before May 12, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2008-0049 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1)*Online: http://www.regulations.gov* .
(2)*Mail:* Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
(3)*Hand delivery:* Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(4)*Fax:* 202-493-2251. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call Bart Marcules, Bridge Administration Branch, telephone
(504)671-2128. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation
(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. Submitting Comments If you submit a comment, please include the docket number for this rulemaking USCG-2008-0049, indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* at any time, click on “Search for Dockets,” and enter the docket number for this rulemaking USCG-2008-0049 in the Docket ID box, and click enter. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov* . Public Meeting We are not at this time planning to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose The Lafourche Parish Council has requested that a regulation be placed on the SR 316 Blue Bayou Pontoon Bridge across the Gulf Intracoastal Waterway (GIWW), at mile 49.8, near Houma, Louisiana. This bridge currently opens on signal as required by 33 CFR 117.5. Due to a high volume of vehicular traffic on SR 316 and length of time to open and close the SR 316 Blue Bayou Pontoon Bridge, a bridge opening can cause a substantial delay in transit time for school buses having to cross the bridge. To minimize the transit time of school children, Lafourche Parish requested closure periods around the scheduled school bus route times to allow the buses to cross the bridge without delay caused by a bridge opening. Currently, based on twelve months of bridge logs and a two week vehicular traffic count during the school year, the 7 a.m. to 8:30 a.m. period has an average of 87 cars to 3.4 vessels, the 2 p.m. to 4 p.m. period has an average of 112 cars to 6.3 vessels, and the 4:30 p.m. to 5:30 p.m. period has an average of 140 cars to 3.2 vessels. Thus, a substantial delay can occur to the school buses that have to cross this bridge during their routes. A Test Deviation, USCG-2008-0048, is being issued in conjunction with this Notice of Proposed Rulemaking to test the proposed schedule and to obtain data and public comments. The test period will be in effect from March 27, 2008 until April 28, 2008. The Coast Guard will review the logs of the drawbridge and evaluate public comments from this Notice of Proposed Rulemaking and the above referenced Temporary Deviation to determine if a permanent special drawbridge operating regulation is warranted. The Test Deviation shall allow the draw to open on signal; except that, the draw need not be opened from 7 a.m. to 8:30 a.m., from 2 p.m. to 4 p.m., and from 4:30 p.m. to 5:30 p.m., Monday through Friday except Federal holidays. Discussion of Proposed Rule The proposed rule will allow the SR 316 Blue Bayou Pontoon Bridge to not have to open from 7 a.m. to 8:30 a.m., 2 p.m. to 4 p.m., and 4:30 p.m. to 5:30 p.m. This departure from the current regulation requiring the bridge to open on signal is based on bus route times. The proposed regulation will allow the school buses that transit on SR 316 to deliver their passengers in a timely manner without delays. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The proposed rule will only allow the bridge to not have to open during three short periods during the day with open on signal periods between each closure period. Given the high vehicular traffic to low vessel count—the 7 a.m. to 8:30 a.m. period has an average of 87 cars to 3.4 vessels, the 2 p.m. to 4 p.m. period has an average of 112 cars to 6.3 vessels, and the 4:30 p.m. to 5:30 p.m. period has an average of 140 cars to 3.2 vessels—we expect very few vessels will be impacted or backed up, and those few vessels should be able to schedule their transit time during an open on signal period. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect a limited number of small entities. These entities include tug boat and trawler operators. This proposed rule will have no significant impact on any small entities because the proposed regulation will only provide for three short closure periods with open on signal periods between each closure period. Thus, small entities may schedule to transit through this bridge during the open on signal periods and avoid any delay. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Bart Marcules, Bridge Administration Branch, telephone
(504)671-2128. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 117 Bridges For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1. 2. In § 117.451, redesignate paragraphs (c), (d), and
(e)as paragraphs (d), (e), and (f), respectively, and add new paragraph
(c)to read as follows: § 117.451 Gulf Intracoastal Waterway
(c)The draw of the SR 316 Bayou Blue Bridge, mile 49.8, near Houma shall open on signal; except that, from August 15 to May 31 (the school year), the draw need not be opened from 7 a.m. to 8:30 a.m., from 2 p.m. to 4 p.m., and from 4:30 p.m. to 5:30 p.m., Monday through Friday except Federal holidays. Dated: February 21, 2008. J.H. Korn, Captain, U.S. Coast Guard, Commander, 8th Coast Guard District, Acting. [FR Doc. E8-4940 Filed 3-11-08; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 80 [EPA-HQ-2005-0036; FRL-8542-2] RIN 2060-AO89 Control of Hazardous Air Pollutants From Mobile Sources: Early Credit Technology Requirement Revision AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to revise the February 26, 2007 mobile source air toxics rule's requirements that specify the benzene control technologies that qualify a refiner to generate early benzene credits. We are proposing to allow another specific benzene control technology, benzene alkylation, in addition to the four operational or technological changes that the 2007 rule currently allows. We are also proposing a general provision that would allow a refiner to submit a request to EPA to approve other benzene-reducing operational changes or technologies for the purpose of generating early credits. In the “Rules and Regulations” section of this **Federal Register** we are revising the February 26, 2007 rule as discussed above via a direct final rule without a prior proposed rule. If we receive no adverse comment, we will not take further action on this proposed rule. DATES: Written comments must be received by April 11, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-2005-0036, by mail to: EPA-HQ-2005-0036, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this **Federal Register** . FOR FURTHER INFORMATION CONTACT: Christine Brunner, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood, Ann Arbor, MI 48105; telephone number:
(734)214-4287; fax number:
(734)214-4816; e-mail address: *brunner.christine@epa.gov* . Alternative contact: Assessment and Standards Division Hotline, telephone number:
(734)214-4636; e-mail address: *asdinfo@epa.gov.* SUPPLEMENTARY INFORMATION: Why is EPA Issuing This Proposed Rule? This document proposes to revise the early credit technology requirement under the MSAT2 benzene rule. We have published a direct final rule that takes this action in the “Rules and Regulations” section of this **Federal Register** because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document. Does this Action Apply to Me? This action may affect you if you produce gasoline. The following table gives some examples of entities that may have to follow the regulations. Category NAICS 1 codes SIC 2 codes Examples of potentially regulated entities Industry 324110 2911 Petroleum Refiners. 1 North American Industry Classification System (NAICS). 2 Standard Industrial Classification
(SIC)system code. This table is not intended to be exhaustive, but provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To decide whether your organization might be affected by this action, you should carefully examine today's proposed action and the existing regulations in 40 CFR part 80. If you have any questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding FOR FURTHER INFORMATION CONTACT section. Outline of This Preamble I. Background II. Today's Action III. Environmental and Economic Impact IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Statutory Provisions and Legal Authority List of Subjects I. Background The Mobile Source Air Toxics rule (MSAT2), published on February 26, 2007 (72 FR 8428), requires that refiners and importers produce gasoline that has an annual average benzene content of 0.62 volume percent (vol%) or less, beginning in 2011. (See § 80.1230(a).) The rule also requires that no refiner or importer have an actual average gasoline benzene level greater than 1.3 volume percent. After achieving an actual annual average benzene level of 1.3 vol%, refiners and importers may use benzene credits to reduce their average benzene level to 0.62 vol%. Refiners may generate benzene credits for their own use or to sell to others, in two ways. Once the program begins in 2011, a refiner generates credits (known as standard credits) when its average annual gasoline benzene level is less than 0.62 vol%. Importers can also generate standard credits. Refiners may also generate credits prior to 2011. 1 These credits are called early credits. The final rule allowed for the generation of early benzene credits in any annual averaging period prior to 2011 (i.e., 2008, 2009, and 2010), as well as for the partial year period June 1—December 31, 2007. Early credits are generated on a refinery basis. In order to generate early credits, a refinery must meet several requirements:
(1)Establish a benzene baseline based on the average benzene level of the gasoline produced at the refinery during the two-year period 2004-05. (See § 80.1285.)
(2)Make operational changes or improvements in benzene control technology that will result in real benzene reductions. (See § 80.1275(d).)
(3)Achieve an annual average benzene level at least 10% lower than its baseline level. (See § 80.1275(a)). 1 Importers are not allowed to generate early credits because they do not have the ability to make the benzene reduction technology changes that would lower benzene levels in the gasoline pool. In § 80.1275(d)(1) of the MSAT2 final rule, we specified four types of operational changes and benzene control technology improvements that would allow a refinery to qualify for generating early credits if it implemented the changes after 2005 and if it also met the other related requirements. These operational changes and technology improvements are:
(1)Treating the heavy straight run naphtha entering the reformer using light naphtha splitting and/or isomerization.
(2)Treating the reformate stream exiting the reformer using benzene extraction or benzene saturation.
(3)Directing additional refinery streams to the reformer for treatment as described in
(1)and
(2)above.
(4)Directing reformate streams to other refineries with treatment capabilities as described in
(2)above. We included in this list all the strategies we thought would reduce benzene and be cost-effective. The provision was intended to not allow early credit generation solely by benzene reductions achieved through ethanol blending. A refinery needs to implement at least one of the listed improvements. The final rule did not provide a way for EPA to consider alternative means of reducing benzene, no matter how efficacious the alternative might be. Soon after the rule was finalized, it came to our attention that at least one refinery had plans to install benzene alkylation technology. Benzene alkylation is not one of the four operational or technological changes enumerated in the final rule. Although EPA regards benzene alkylation as a legitimate benzene reduction technology, we did not expect it to be used. (See the Regulatory Impact Analysis (EPA 420-R-07-002, February 2007), Chapter 6, Page 36.) II. Today's Action We published a Questions and Answers document related to the MSAT2 program on August 16, 2007. ( *http://epa.gov/otaq/regs/toxics/420f07053.pdf* ) In that document, we specifically addressed benzene alkylation and indicated that benzene alkylation meets the intent of the technology requirement for early credits. As discussed in the preamble of the final rule, early credits are generated based on innovations in gasoline benzene control technology that result in real benzene reductions prior to the start of the program in 2011. (See 72 FR 8486.) The use of benzene alkylation directly results in lower gasoline benzene levels. We are proposing to revise § 80.1275(d)(1) to include benzene alkylation in the list of acceptable benzene reduction operational and technological strategies. We are also proposing a general provision that would allow a refiner to petition EPA to use an operational or technological change that is not listed in the regulation for the purpose of generating early credits. The refiner would have to demonstrate that the benzene control technology improvement or operational change results in a net reduction in the refinery's average gasoline benzene level, exclusive of benzene reductions due simply to blending practices. The petition would have to be submitted to EPA prior to the start of the first averaging period in which the refinery plans to generate early credits. EPA expects it would act on such a petition before the end of that averaging period. The refiner would also have to provide additional information requested by EPA. The other requirements for generating early credits are unchanged. These include submitting a benzene baseline, reducing the refinery's baseline benzene level by at least 10% in a given averaging period, and not moving gasoline or blendstock streams between refineries for the purpose of generating early credits (See 72 FR 8486.) III. Environmental and Economic Impact We believe there will be no negative environmental or economic impacts resulting from the proposed changes. This action would allow those companies that have alternative means or strategies for reducing gasoline benzene to request EPA approval to use them for the purpose of generating early benzene credits. Average gasoline benzene levels from such refiners would decrease faster and earlier than if they had not generated early credits, and such credits would help provide for a robust credit pool when the program starts in 2011. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action would revise the February 26, 2007 mobile source air toxics rule's requirements that specify the benzene control technologies that qualify a refiner to generate early benzene credits. It would allow another specific benzene control technology, benzene alkylation, to be used for the purpose of generating early credits, and would allow a refiner to submit a request to EPA to approve other benzene-reducing operational changes or technologies for the purpose of generating early credits. This action is not expected to have an annual impact on the economy of more than $100 million, nor does it raise any novel legal or policy issues. This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. B. Paperwork Reduction Act This proposed action would not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq* because the proposed amendments do not change the information collection requirements of the underlying rule. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9. C. Regulatory Flexibility Act EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this proposed rule because this action would not have a significant economic impact on a substantial number of small entities. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as:
(1)A petroleum refining company with fewer than 1500 employees or a petroleum wholesaler or broker with fewer than 100 employees, based on the North American Industrial Classification System (NAICS);
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. This proposed rule simply modifies the original rule in a limited manner, and would not significantly change the original rule. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments, because it applies only to parties that produce gasoline. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule does not have federalism implications. It 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, as specified in Executive Order 13132. The rule would amend existing regulatory provisions applicable only to producers of gasoline and would not alter State authority to regulate these entities. The amendments would impose no direct costs on State or local governments. Thus, Executive Order 13132 does not apply to this proposed rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It would not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. The proposed rule would amend existing regulatory provisions applicable only to producers of gasoline and would impose no direct costs on tribal governments. Thus, Executive Order 13175 does not apply to this proposed rule. G. Executive Order 13045: Protection of Children From Environmental Health & Safety Risks Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined in Executive Order 12866. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. We believe there will be no negative environmental or economic impacts resulting from the proposed changes compared to the February 26, 2007 rule this action proposes to modify. Statutory Provisions and Legal Authority The statutory authority for the fuels controls in this proposed rule can be found in sections 202 and 211(c) of the Clean Air Act (CAA), as amended. Support for any procedural and enforcement-related aspects of the fuel controls in this proposal, including recordkeeping requirements, comes from sections 114(a) and 301(a) of the CAA. List of Subjects in 40 CFR Part 80 Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Fuel additives, Gasoline, Imports, Labeling, Motor vehicle fuel, Motor vehicle pollution, Penalties, Reporting and recordkeeping requirements. Dated: March 6, 2008. Stephen L. Johnson, Administrator. For the reasons set forth in the preamble, 40 CFR part 80 is amended as set forth below: PART 80—REGULATION OF FUELS AND FUEL ADDITIVES 1. The authority citation for part 80 continues to read as follows: Authority: 42 U.S.C. 7414, 7542, 7545 and 7601(a). 2. Section 80.1275 is amended as follows: a. By adding paragraph (d)(1)(v). b. By redesignating paragraph (d)(2) as paragraph (d)(3). c. By adding paragraph (d)(2). § 80.1275 How are early benzene credits generated?
(d)* * *
(1)* * *
(v)Providing for benzene alkylation. (2)(i) A refiner may petition EPA to approve, for purposes of paragraph (d)(1) of this section, the use of operational changes and/or improvements in benzene control technology that are not listed in paragraph (d)(1) of this section to reduce gasoline benzene levels at a refinery.
(ii)The petition specified in paragraph (d)(2)(i) of this section must be sent to: U.S. EPA, NVFEL-ASD, Attn: MSAT2 Early Credit Benzene Reduction Technology, 2000 Traverwood Dr., Ann Arbor, MI 48105.
(iii)The petition specified in paragraph (d)(2)(i) of this section must show how the benzene control technology improvement or operational change results in a net reduction in the refinery's average gasoline benzene level, exclusive of benzene reductions due simply to blending practices.
(iv)The petition specified in paragraph (d)(2)(i) of this section must be submitted to EPA prior to the start of the first averaging period in which the refinery plans to generate early credits.
(v)The refiner must provide additional information as requested by EPA.
(3)Has not included gasoline blendstock streams transferred to, from, or between refineries, except as noted in paragraph (d)(1)(iv) of this section. [FR Doc. E8-4915 Filed 3-11-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA-R08-RCRA-2006-0382; FRL-8541-6] Colorado: Final Authorization of State Hazardous Waste Management Program Revisions AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: Colorado has applied to EPA for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). The EPA proposes to grant final authorization to the hazardous waste program changes submitted by Colorado. In the “Rules and Regulations” section of this **Federal Register** , EPA is authorizing the State's program changes as an immediate final rule. EPA did not make a proposal prior to the immediate final rule because we believe these actions are not controversial and do not expect comments to oppose them. We have explained the reasons for this authorization in the preamble to the immediate final rule. Unless we get written comments opposing this authorization during the comment period, the immediate final rule will become effective and the Agency will not take further action on this proposal. If we receive comments that oppose these actions, we will publish a document in the **Federal Register** withdrawing this rule before it takes effect. EPA will then address public comments in a later final rule based on this proposal. Any parties interested in commenting on these actions must do so at this time. EPA may not provide further opportunity for comment. DATES: Comments must be received on or before April 11, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-RCRA-2006-0382, by one of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *E-mail:* *daly.carl@epa.gov* . • *Fax:*
(303)312-6341. • *Mail:* Send written comments to Carl Daly, Solid and Hazardous Waste Program, EPA Region 8, Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129. • *Hand Delivery or Courier:* Deliver your comments to Carl Daly, Solid and Hazardous Waste Program, EPA Region 8, Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted during the Regional Office's normal hours of operation. The public is advised to call in advance to verify the business hours. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R08-RCRA-2006-0382. EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* , or e-mail. The federal web site *http://www.regulations.gov* is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties, and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters or any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . Docket: All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information may not be publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at: EPA Region 8, from 9 a.m. to 4 p.m., 1595 Wynkoop Street, Denver, Colorado, contact: Carl Daly, phone number
(303)312-6416, or the Colorado Department of Public Health and Environment, from 9 a.m. to 4 p.m., 4300 Cherry Creek Drive South, Denver, Colorado 80222-1530, contact: Randy Perila, phone number
(303)692-3364. FOR FURTHER INFORMATION CONTACT: Carl Daly, Solid and Hazardous Waste Program, U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202,
(303)312-6416, *daly.carl@epa.gov* . SUPPLEMENTARY INFORMATION: For additional information, please see the immediate final rule published in the “Rules and Regulations” section of this **Federal Register** . Dated: February 28, 2008. Carol Rushin, Acting Regional Administrator, Region 8. [FR Doc. E8-4977 Filed 3-11-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 192 [Docket ID PHMSA-2005-23447; Notice 2] RIN 2137-AE25 Pipeline Safety: Standards for Increasing the Maximum Allowable Operating Pressure for Gas Transmission Pipelines AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation ACTION: Notice of proposed rulemaking. SUMMARY: PHMSA proposes to amend the pipeline safety regulations to prescribe safety requirements for the operation of certain gas transmission pipelines at pressures based on higher stress levels. The result would be an increase of maximum allowable operating pressure
(MAOP)over that currently allowed in the regulations. This action would update regulatory standards to reflect improvements in pipeline materials, assessment tools, and maintenance practices, which together have significantly reduced the risk of failure in steel pipeline fabricated and installed over the last twenty-five years. The proposed rule would allow use of an established industry standard for the calculation of MAOP, but limit application of the standard to pipelines posing a low safety risk based on location, materials, and construction. The proposed rule would generate significant public benefits by boosting the potential capacity and efficiency of pipeline infrastructure, while promoting investment in improved pipe technology and rigorous life-cycle maintenance. DATES: Anyone interested in filing written comments on the rule proposed in this document must do so by May 12, 2008. PHMSA will consider late filed comments so far as practicable. ADDRESSES: Comments should reference Docket ID PHMSA-2005-23447 and may be submitted in the following ways: • *E-Gov Web Site:* *http://www.regulations.gov.* This site allows the public to enter comments on any **Federal Register** notice issued by any agency. Follow the instructions for submitting comments. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management System: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-140, Washington, DC 20590. • *Hand Delivery:* DOT Docket Management System; Room W12-140, on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Instructions:* Identify the docket ID, PHMSA-2005-23447, at the beginning of your comments. If you submit your comments by mail, submit two copies. If you wish to receive confirmation that PHMSA received your comments, include a self-addressed stamped postcard. Internet users may submit comments at *http://www.regulations.gov.* Note: Comments will be posted without changes or edits to *http://www.regulations.gov* including any personal information provided. Please see the Privacy Act heading in the Regulatory Analyses and Notices section of the Supplemental Information for additional information. FOR FURTHER INFORMATION CONTACT: For information about this rulemaking, contact Barbara Betsock by phone at
(202)366-4361, by fax at
(202)366-4566, or by e-mail at *barbara.betsock@dot.gov.* For technical information, contact Alan Mayberry by phone at
(202)366-5124, or by e-mail at *alan.mayberry@dot.gov.* SUPPLEMENTARY INFORMATION: Table of Contents A. Purpose of the Rulemaking B. Background B.1. Current Regulations B.2. Evolution in Views on Pressure B.3. History of PHMSA Consideration B.4. Safety Conditions in Special Permits B.5. Codifying the Special Permits B.6. How to Handle Special Permits and Requests for Special Permits B.7. Statutory Considerations C. The Proposed Rule C.1. In General C.2. Proposed Amendment to § 192.7—Incorporation by Reference C.3. Proposed New § 192.112—Additional Design Requirements C.4. Proposed New § 192.328—Additional Construction Requirements C.5. Proposed Amendment to § 192.619—Maximum Allowable Operating Pressure C.6. Proposed New § 192.620—Operation at an Alternative MAOP C.6.1. Calculating the Alternative MAOP C.6.2. Which Pipelines Qualify C.6.3. How an Operator Selects Operation Under This Section C.6.4. Initial Strength Testing C.6.5. Operation and Maintenance C.6.6. New Construction and Maintenance Tasks C.6.7. Recordkeeping C.7. Additional Operation and Maintenance Requirements C.7.1. Threat Assessments C.7.2. Public Awareness C.7.3. Emergency Response C.7.4. Damage Prevention C.7.5. Internal Corrosion Control C.7.6. External Corrosion Control C.7.7. Integrity Assessments C.7.8. Repair Criteria C.8. Overpressure Protection—Proposed § 192.620(e) D. Regulatory Analyses and Notices D.1. Privacy Act Statement D.2. Executive Order 12866 and DOT Policies and Procedures D.3. Regulatory Flexibility Act D.4. Executive Order 13175 D.5. Paperwork Reduction Act D.6. Unfunded Mandates Reform Act of 1995 D.7. National Environmental Policy Act D.8. Executive Order 13132 D.9. Executive Order 13211 A. Purpose of the Rulemaking The regulatory relief proposed in this rulemaking is made possible by dramatic improvements in pipeline technology and risk controls over the past 25 years. The current standards for calculating maximum allowable operating pressure
(MAOP)on gas transmission pipelines were adopted in 1970, in the original pipeline safety regulations promulgated under Federal law. Almost all risk controls on gas transmission pipelines have been strengthened in the intervening years, beginning with the introduction of improved manufacturing, metallurgy, testing, and assessment tools and standards. Pipe manufactured and tested to modern standards is far less likely to contain defects that can grow to failure over time than pipe manufactured and installed a generation ago. Likewise, modern maintenance practices, if consistently followed, significantly reduce the risk that corrosion, or other defects affecting pipeline integrity, will develop in installed pipelines. Most recently, operators' development and implementation of integrity management programs have increased understanding about the condition of pipelines and of how to reduce pipeline risks. In view of these developments, PHMSA believes that certain gas transmission pipelines can be safely and reliably operated at pressures above current Federal pipeline safety design limits. With appropriate conditions and controls, permitting operation at higher pressures will increase energy capacity and efficiency, without diminishing system safety. PHMSA has granted special permits on a case-by-case basis to allow operation of particular pipeline segments at a higher MAOP than currently allowed under the design requirements. These special permits have been limited to operation in Class 1, 2, and 3 locations and conditioned on demonstrated rigor in the pipeline's design and construction and the operator's performance of additional safety measures. Building on the record developed in the special permit proceedings, PHMSA now proposes to codify the conditions and limitations of the special permits into standards of general applicability. B. Background B.1. Current Regulations The design factor specified in § 192.105 restricts the MAOP of a steel gas transmission pipeline based on stress levels and class location. For most steel pipelines, the MAOP is defined in § 192.619 based on design pressure calculated using a formula, found at § 192.111, that includes the design factor. In sparsely populated Class 1 locations, the design factor specified in § 192.105 restricts the stress level at which a pipeline can be operated to 72 percent of the specified minimum yield strength
(SMYS)of the steel. The operating pressures in more populated Class 2 and Class 3 locations are limited to 60 and 50 percent of SMYS, respectively. Paragraph
(c)of § 192.619 provides an exception to this calculation of MAOP for pipelines built before the issuance of the Federal pipeline safety standards. A pipeline that is “grandfathered” under this section may be operated at a stress level exceeding 72 percent of SMYS (but not to exceed 80 percent of SMYS) if it was operated at that pressure for five years prior to July 1, 1970. Part 192 also prescribes safety standards for designing, constructing, operating, and maintaining steel pipelines used to transport gas. Although these standards have always included several requirements for initial and periodic testing and inspection, prior to 2003, part 192 contained no Federal requirements for internal inspection of existing pipelines. Internal inspection is performed using a tool known as an “instrumented pig” (or “smart pig”). Many pipelines constructed before the advent of this technology cannot accommodate an instrumented pig and, accordingly, cannot be inspected internally. Beginning in 1994, PHMSA required operators to design new pipelines so that they could accommodate instrumented pigs, paving the way for internal inspection (59 FR 17281; Apr. 12, 1994). In December 2003, PHMSA adopted its gas transmission integrity management rule, requiring operators to develop and implement plans to extend additional protections, including internal inspection, to pipelines located in “high consequence areas” (68 FR 69816). Integrity management programs, as described in subpart O of part 192, include threat assessments, both baseline and periodic internal inspection or direct assessment, and additional measures designed to prevent and mitigate pipeline failures and their consequences. A high consequence area, as defined in § 192.903, is a geographic territory in which, by virtue of its population density and proximity to a pipeline, a pipeline failure would pose a higher risk to people. For purposes of risk analysis, the regulations establish four classifications based on population density, ranging from Class 1 (undeveloped, rural land) through Class 4 (densely populated urban areas). In addition to class location, one of the criteria for identifying a high consequence area is a potential impact circle surrounding a pipeline. The calculation of the circle includes a factor for the MAOP, with the result that a higher MAOP results in a larger impact circle. B.2. Evolution in Views on Pressure Absent any defects, and with proper maintenance, steel pipe can last for decades in gas service. However, the manufacture of the steel or casting of the pipe can introduce flaws. In addition, during construction, improper backfilling can damage pipe coating. Over time, damaged coating can allow corrosion to continue unchecked and cause leaks. During operation, excavators' substandard practices can dent the line or corrosion can thin the wall of the pipe. The regulations on MAOP in part 192 have their origin in engineering standards developed in the 1950s, when industry had relatively limited information about the material properties of pipe and limited ability to evaluate a pipeline's integrity during its operating lifetime. Early pipeline codes allowed maximum operating pressures to be set at a fixed amount over the pressure of the initial strength test without regard to SMYS. Pipeline engineers developing consensus standards looked for ways to lengthen the time before defects initiated during manufacture, construction, or operation could grow to failure. Their solution focused on tests done at the mill to evaluate the ability of the pipe to contain pressure during operation. They added an additional factor to the hydrostatic test pressure of the mill test. At the time, the consensus standard, known as the B31.8 Code, used this conservative margin of safety for gas pipe design. A 25 percent margin of safety translated into a design factor limiting stress level to 72 percent of SMYS in rural areas. Specifically, the MAOP of 72 percent of SMYS comes from dividing the typical maximum mill test pressure of 90 percent of SMYS by 1.25. When issuing the first Federal pipeline safety regulations in 1970, regulators incorporated this design factor, as found in the 1968 edition of the B31.8 Code, into the requirements for determining the MAOP. Even as the Federal regulations were being developed, some technical support existed for operation at a higher stress level, provided initial strength testing removed defects. In 1968, the American Gas Association published Report No. L30050 entitled *Study of Feasibility of Basing Natural Gas Pipeline Operating Pressure on Hydrostatic Test Pressure* prepared by the Battelle Memorial Institute. The research study concluded that: • It is inherently safer to base the MAOP on the test pressure, which demonstrates the actual in-place yield strength of the pipeline, than to base it on SMYS alone. • High pressure hydrostatic testing is able to remove defects that may fail in service. • Hydrostatic testing to actual yield, as determined with a pressure-volume plot, does not damage a pipeline. The report specifically recommended setting the MAOP as a percentage of the field test pressure. In particular, it recommended setting the MAOP at 80 percent of the test pressure when the minimum test pressure is 90 percent of SMYS or higher. Although the committee responsible for the B31.8 Code received the report, the committee deferred consideration of its findings at that time because the Federal regulators had already begun the process to incorporate the 1968 edition of the B31.8 Code into the Federal pipeline safety standards. More than a decade later, the committee responsible for development of the B31.8 Code, now under the auspices of the American Society of Mechanical Engineers (ASME), revisited the question of design factor it had deferred in the late 1960s. The committee determined pipelines could operate safely at stress levels up to 80 percent of SMYS. ASME updated the design factors in a 1990 addendum to the 1989 edition of the B31.8 Code, and they remain in the current edition. Although part 192 incorporates parts of the B31.8 Code by reference, it does not incorporate the updated design factors. With the benefit of operating experience with pipelines, it seems clear that operating pressure plays a less critical role in pipeline integrity and failure consequence than other factors within the operator's control. By any measure, new technologies and risk controls have had a far greater impact on pipeline safety and integrity. A great deal of progress has occurred in the manufacture of steel pipe and in its initial inspection and testing. Technological advances in metallurgy and pipe manufacture decrease the risk of incipient flaws occurring and going undetected during manufacture. The detailed standards now followed in steel and pipe manufacture provide engineers considerable information about their material properties. The toughness standards make the new steel pipe more likely to resist fracture and to survive mechanical damage. Knowledge about the material properties allows engineers to predict how quickly flaws, whether inherent or introduced during construction or operation, will grow to failure under known operating conditions. Initial inspection and hydrostatic testing of pipelines allow operators to discover flaws that have occurred prior to operation, such as during transportation or construction. They also serve to validate the integrity of the pipeline before operation. Initial pressure testing causes longitudinal and some other flaws introduced during manufacture, transportation, or construction to grow to the point of failure. Initial pressure testing detects all but one type of manufacturing or construction defect that could cause failure in the near term. The one type of defect pressure testing cannot identify is a flaw in a girth weld. Such defects are detectable though pre-operational non-destructive testing, which this proposed rule would require. The most common defects initiated during operation are caused by mechanical damage or corrosion. Improvements in technology have resulted in internal inspection techniques that provide operators a significant amount of information about defects. Although there is significant variance in the capability of the tools used for internal inspections, they each provide the operator information about flaws in the pipeline that an operator would not otherwise have. An operator can then examine these flaws to determine whether they are defects requiring repair. In addition, internal inspections with inline inspection devices, unlike pressure testing, are not destructive and can be done while the pipeline is in operation. Initial internal inspection establishes a baseline. Operators can use subsequent internal inspections at appropriate intervals to monitor for changes in flaws already discovered or to find new flaws requiring repair or monitoring. Internal inspections, and other improved life cycle management practices, increase the likelihood operators will detect any flaws that remain in the pipe after initial inspection and testing, or that develop after construction, well before the flaws grow to failure. B.3. History of PHMSA Consideration Although the agency has never formally revisited its part 192 MAOP standards, developments in related arenas have increasingly set the stage for the more limited action we propose here. Grandfathered pipelines have operated successfully at higher stress levels in the United States during more than 35 years of Federal safety regulation. Many of these grandfathered pipelines have operated at higher stress levels for more than 50 years without a higher rate of failure. We have also been aware of pipelines outside the United States operating successfully at the higher stress levels permitted under the ASME standard. A technical study published in December 2000 by R.J. Eiber, M. McLamb, and W. B. McGehee, *Quantifying Pipeline Design at 72% SMYS as a Precursor to Increasing the Design Stress Level* , GRI-00/0233, further raised interest in the issue. In connection with our issuance of the 2003 integrity management regulations, PHMSA announced a policy to grant “class location” waivers (now called special permits) to operators demonstrating an alternative integrity management program for the affected pipeline. A “class location” waiver allows an operator to maintain current operating pressure on a pipeline following an increase in population that changes the class location. Absent a waiver, the operator would have to reduce pressure or replace the pipe with thicker walled pipe. PHMSA held a meeting on April 14-15, 2004 to discuss the criteria for the waivers. In a notice seeking public involvement in the process (69 FR 22116; Apr. 23, 2004), PHMSA announced: Waivers will only be granted when pipe condition and active integrity management provides a level of safety greater than or equal to a pipe replacement or pressure reduction. A second notice (69 FR 38948; June 29, 2004) announced the criteria. The criteria include the use of high quality manufacturing and construction processes, effective coating, and a lack of systemic problems identified in internal inspections. Although the class location waivers do not address increases in stress levels, they do address many of the same concerns by looking at how to handle the risks caused by operating pressure. Many of the specific criteria, and certainly the approach to risk management in the class location waivers, helped PHMSA develop the approach to the special permits discussed below and, ultimately, to this proposed rule. Beginning in 2005, operators began addressing the issue of stress level directly with requests that PHMSA allow operation at the MAOP levels that the ASME B31.8 Code would allow. With the increasing interest, PHMSA held a public meeting on March 21, 2006, to discuss whether to allow increased MAOP consistent with the updated ASME standards. PHMSA also solicited technical papers on the issue. Papers filed in response, as well as the transcript of the public meeting, are in the docket for this rulemaking. Later in 2006, PHMSA again sought public comment at a meeting of its advisory committee, the Technical Pipeline Safety Standards Committee. The transcript and briefing materials for the June 28, 2006 meeting are in the docket for the advisory committee, Docket ID PHMSA-RSPA-1998-4470-204, 220. This docket can be found at *http://www.regulations.gov* . Comments and papers during these efforts overwhelmingly support examining increased MAOP as a way to increase energy efficiency and capacity without reducing safety. B.4. Safety Conditions in Special Permits In 2005, operators began requesting waivers, now called special permits, to allow operation at the MAOP levels that the ASME B31.8 Code would allow. In some cases, operators filed these requests at the same time they were seeking approval from the Federal Energy Regulatory Commission to build new gas transmission pipelines. In other cases, operators sought relief from current MAOP limits for existing pipelines that had been built to more rigorous design and construction standards. In developing an approach to the requests, PHMSA examined the operating history of lines already operated at higher stress levels. Canadian and British standards have allowed operation at the higher stress levels for some time. The Canadian pipeline authority, which has allowed higher stress levels since 1973, reports the following experience with pipelines operating at stress levels higher than 72 percent of SMYS: • About 6,000 miles of pipelines on the Alberta system, ranging from 6 to 42 inches in diameter, installed or upgraded between the early 1970s and 2005; • About 4,500 miles of pipelines on the Mainline system east of the Alberta-Saskatchewan border, ranging from 20 to 42 inches in diameter, installed or upgraded between the early 1970s and 2005; and • More than 600 miles in the Foothills Pipe Line system, ranging from 36 to 40 inches in diameter, installed between 1979 and 1998. In the United Kingdom, about 1,140 miles of the Northern pipeline system has been uprated to operate at higher stress level in the past ten years. In the United States, some 5,000 miles of gas transmission lines that were grandfathered under § 192.619(c) when the Federal pipeline safety regulations were adopted in the early 1970s continue to operate at stress levels higher than 72 percent of SMYS. After some accidents caused by corrosion on grandfathered pipelines, PHMSA considered whether to remove the exception in § 192.619(c). In 1992, PHMSA decided to continue to allow operation at the grandfathered pressures (57 FR 41119; Sept. 9, 1992). PHMSA based its decision on the operating history of two of the operators whose pipelines contained most of the mileage operated at the grandfathered pressures. PHMSA noted the incident rate on these pipelines, operated at stress levels above 72 percent of SMYS, was between 10 percent and 50 percent of the incident rate of pipelines operated at the lower pressure. Texas Eastern Gas Pipeline Company (now Spectra Energy), the operator of many of the grandfathered pipelines, attributed the lower incident rate to aggressive inspection and maintenance. This included initial hydrostatic testing to 100 percent of SMYS, internal inspection, visual examination of anomalies found during internal inspection, repair of defects, and selective pressure testing to validate the results of the internal inspection. Internal inspection was not in common use in the industry prior to the 1980s. PHMSA's statistics show these pipelines continue to have an equivalent safety record when compared with pipelines operating according to the design factors in the pipeline safety regulations. PHMSA also considered technical studies and required companies seeking special permits to provide information about the pipeline's design and construction and to specify the additional inspection and testing to be used. PHMSA also considered how to handle findings that could compromise the long term serviceability of the pipe. PHMSA concluded that pipelines can operate safely and reliably at stress levels up to 80 percent of SMYS if the pipeline has well-established metallurgical properties and can be managed to protect it against known threats, such as corrosion and mechanical damage. Early and vigilant corrosion protection reduces the possibility of corrosion occurring. At the earliest stage, this includes care in applying a protective coating before transporting the pipe to the right-of-way. With the newer coating materials and careful application, coating provides considerable protection against external corrosion and facilitates the application of induced current, commonly called cathodic protection, to prevent corrosion from developing at any breaks that may occur in the coating. Regularly monitoring the level of protection and addressing any low readings corrects conditions that can cause corrosion at an early stage. Vigilant corrosion protection includes close attention to operating conditions that lead to internal corrosion, such as poor gas quality. In addition, for new pipelines, operators' compliance with a rule issued earlier this year requiring greater attention to internal corrosion protection during design and construction (72 FR 20059; Apr. 23, 2007) will prevent internal corrosion. Finally, corrosion protection includes internal inspection and other assessment techniques for early detection of both internal and external corrosion. One of the major causes of serious pipeline failure is mechanical damage caused by outside forces, such as an equipment strike during excavation activities. Burying the pipeline deeper, increased patrolling, and additional line marking helps prevent the risk that excavation will cause mechanical damage. Further, enhanced pipe properties increase the pipe's resistance to immediate puncture from a single equipment strike. Improved toughness increases the ability of the pipe to withstand mechanical damage from an outside force and also may also limit any failure consequences to leaks rather than ruptures. This toughness usually allows time for the operator to detect the damage during internal inspection well before the pipe fails. To evaluate each request, PHMSA established a docket and sought public comment on the request. We received few public comments, most in response to the first special permits considered. Many of the comments supported granting the special permits. Those who did not may have been unappreciative of the significance of the safety upgrades required for the special permits. A few raised technical concerns. Among these were questions about the impact of rail crossings and blasting activities in the vicinity of the pipeline. The special permits did not change the current requirements where road crossings exist and added a requirement to monitor activities, such as blasting, that could impact earth movement. Some commenters expressed concern about the impact radius of the pipeline operating at a higher stress level. PHMSA included supplemental safety criteria to address the increased radius. The remainder of the comment addressed concerns, such as compensation or aesthetics, which were outside the scope of the special permits. PHMSA permits do not address issues on siting, which is governed by the Federal Energy Regulatory Commission. PHMSA has now issued several special permits in response to these requests and continues to receive and evaluate other requests. The following table identifies the status of special permit requests and the dockets containing additional information about them. Table B.4.—Status of Special Permits Docket ID PHMSA— Status of request Type 2005-23448, Maritimes & Northeast Pipeline (Spectra Energy) Granted, July 11, 2006 Pipeline in operation since 1999. 2005-23387, Alliance Pipeline Granted, July 11, 2006 Pipeline in operation since 2000. 2006-23998, Rockies Express Pipeline Granted, July 11, 2006 New pipeline. 2006-25803, Kinder Morgan Louisiana Pipeline Granted, April 19, 2007 New pipeline. 2006-25802, CenterPoint Energy Gas Transmission Granted, July 18, 2007 New pipeline. 2006-26533, Gulf South Pipeline Granted, August 24, 2007 New pipeline. 2006-26616, Ozark Gas Transmission Pending New pipeline. 2006-27607, Southeast Supply Header Pending New pipeline. 2006-27842, Midcontinent Express (Kinder Morgan) Pending New pipeline. 2007-27121, Transwestern Pipeline Pending Pipeline in operation since 1992 and 2005. 2007-28994, Gulf South Pipeline (SouthEast Expansion Project) Pending New pipeline. 2007-29078, Kern River Gas Transmission Company Pending Pipeline in operation since 1992. In each case, PHMSA provides oversight to confirm the line pipe is, or will be, as free of inherent flaws as possible, that construction and operation do not introduce flaws, and that any flaws are detected before they can fail. PHMSA accomplishes this by imposing a series of conditions on the grant of special permits. The conditions are designed to address the potential additional risk involved in operating the pipeline at a higher stress level. A proposed pipeline must be built to rigorous design and construction standards, and the operator requesting a special permit for an existing pipeline must be able to demonstrate that the pipeline has been built to rigorous design and construction standards. These additional design and construction standards focus on producing a high quality pipeline that is free from inherent defects that could grow more rapidly under operation at a higher stress level and more resistant to expected operational risks. In addition, the operator of a pipeline receiving a special permit must comply with operation and maintenance requirements that exceed current pipeline safety regulations. These additional operation and maintenance requirements focus on the potential for corrosion and mechanical damage and on detecting defects before the defects can grow to failure. B.5. Codifying the Special Permits This proposed rule would put in place a process for managing the life cycle of a pipeline operating at a higher stress level. Integrity management focuses on managing and extending the service life of the pipeline. Life-cycle management goes beyond the operations and maintenance practices, including integrity management, to address steel production, pipeline manufacture, pipeline design, and installation. Industry experience with integrity management demonstrates the value of life-cycle maintenance. Through baseline assessments in integrity management programs, gas transmission operators identified and repaired 2,883 defects in the first three years of the program (2004, 2005, and 2006). More than 2,000 of these were discovered in the first two years as operators assessed their highest risk, generally older, pipelines. In a September 2006 report, GAO-09-946, the General Accountability Office noted this data as an early indication of improvement in pipeline safety. In order to qualify for operation at higher stress levels under this proposed rule, pipelines will be designed and constructed under more rigorous conditions. Baseline assessment of these lines as proposed will likely uncover few defects, but removing those few defects will result in safer pipelines. In addition, the results of the baseline assessment will aid in evaluating anomalies discovered during future assessments. This proposed rule, based on the terms and conditions of the special permits allowing operation at higher stress levels, would impose similar terms and conditions and limitations on operators seeking to apply the new rule. The terms and conditions, which include meeting current design standards that go beyond current regulation, address the safety concerns related to operating the pipeline at a higher stress level. PHMSA will step up inspection and oversight of pipeline design and construction, in addition to review and inspection of enhanced life-cycle maintenance requirements for these pipelines. With special permits, PHMSA individually examined the design, construction, and operation and maintenance plans for a particular pipeline before allowing operation at a higher pressure than currently authorized. In each case, PHMSA conditioned approval based on compliance with a series of rigorous design, construction, operation, and maintenance standards. PHMSA's experience with these requests for special permits leads to the conclusion that a rule of general applicability is appropriate. With a rule of general applicability, the conditions for approval are established for all without need to craft the conditions based on individual evaluation. Thus, this proposed rule would set rigorous safety standards. In place of individual examination, the proposed rule would require senior executive certification of an operator's adherence to the more rigorous safety standards. An operator seeking to operate at a higher pressure than allowed by current regulation would have to certify that a pipeline is built according to rigorous design and construction standards and agree to operate under stringent operation and maintenance standards. After PHMSA receives an operator's certification indicating its intention to operate at a higher stress level, PHMSA could then follow up with the operator to verify compliance. As with the special permits, this proposed rule would allow an operator to qualify both new and existing segments of pipeline for operation at the higher MAOP, provided the operator meets the conditions for the segment. Several types of segments will not qualify under the proposed rule. These include the following: • Segments in densely populated Class 4 locations. In addition to the increased consequences of failure in a Class 4 location, the level of activity in such a location increases the risk of excavation damage. • Segments of grandfathered pipeline already operating at a higher stress level but not constructed in accordance with modern standards. Although grandfathered pipeline has operated successfully at the higher stress level, PHMSA would examine any further increases individually through the special permit process. • Bare pipe. This pipe lacks the coating needed to prevent corrosion and to make cathodic protection effective. • Pipe with wrinkle bends. Section 192.315(a) currently prohibits wrinkle bends in pipeline operating at hoop stress exceeding 30 percent of SMYS. • Pipe experiencing failures indicative of a systemic problem, such as seam flaws, during the initial hydrostatic testing. Such pipe is more likely to have inherent defects that can grow to failure more rapidly at higher stress levels and thus will not qualify. • Pipe manufactured by certain processes, such as low frequency electric welding process, will not qualify because it could not satisfy the requirements of the proposed rule. • Segments which cannot accommodate internal inspection devices. These segments would not qualify because the proposed rule would require internal inspection. We are proposing to establish slightly different requirements for segments that have already been operating and those which are to be newly built. Some variation is necessary or appropriate with an existing pipeline. For example, the requirement for cathodically protecting pipeline within 12 months of construction is an existing requirement for all pipelines. A proposed requirement for the operator of an existing segment to prove that the segment was in fact cathodically protected within 12 months of construction provides greater confidence in the condition of the existing segment. Proposing proof of five percent fewer nondestructive tests done on an existing segment at the time of construction recognizes the possibility that, over time, an operator's records might not be complete. The overriding principal in the variation is to allow qualification of a quality pipeline with minimal distinction. Based on our review of requests for special permits on existing pipelines, PHMSA does not believe the more rigorous standards proposed here are too high for existing segments. Setting the qualification standards lower for existing segments could encourage operators to construct a pipeline at the lower standards and seek to raise the operating pressure at some future date. Although pipeline proponents have not yet revealed their final plans, PHMSA anticipates the proposed trans-Alaskan gas pipeline will require an alternative design approach to address anticipated operating conditions in the Arctic. This alternative approach will be subject to PHMSA review. To a large degree, the technical requirements for operation at a higher stress level in this proposed rule will guide agency actions in reviewing the plans for a trans-Alaskan gas pipeline. However, the unique operating environment of the Arctic will dictate changes. For instance, even higher strength steels will be needed. PHMSA will have to look closely at the level of inspection needed to protect the environment and help ensure the long-term safety of the pipeline. B.6. How To Handle Special Permits and Requests for Special Permits Table B.4 describes the status of requests for special permits seeking relief from the current design requirements to allow operation at higher stress levels. For the most part, this proposed rule addresses the relief requested. PHMSA has already granted many of these under terms and conditions that vary slightly from those in this proposed rule. In some cases, the relief granted extends beyond the issues addressed in this proposed rule. It may be appropriate for PHMSA to review the special permits already granted after completion of the rulemaking to determine the need for changes. We seek comment on this issue. PHMSA is also considering how to handle the pending requests and whether to consider others during the course of rulemaking. One option is to continue evaluating each request in light of the terms and conditions proposed here. Any grants of special permits during the course of rulemaking could be limited in time with the intention of revisiting the need for a special permit after completing the rulemaking. Another option is to defer further action on pending requests at least until PHMSA completes the rulemaking. In any case, issuance of a final rule will not foreclose future requests for relief through the special permit process. We can anticipate, for instance, that operators may seek special permits covering pipeline that does not meet fully some of the terms and conditions in a final rule. In such a case, the operator may be able to demonstrate the existence of other safety measures that address the unmet terms and conditions. Notwithstanding the final rule, the operator would be able to request a special permit which PHMSA would consider under the usual public process for special permits. B.7. Statutory Considerations Under 49 U.S.C. 60102(a), PHMSA has broad authority to issue safety standards for the design, construction, operation, and maintenance of gas transmission pipelines. Under 49 U.S.C. 60104(b), PHMSA may not require an operator to modify or replace existing pipeline to meet a new design or construction standard. Although this proposal includes design and construction standards, these standards simply add more rigorous, non-mandatory requirements. This proposal does not require an operator to modify or replace existing pipeline or to design and construct new pipeline in accordance with these non-mandatory standards. If, however, a new or existing pipeline meets these more rigorous standards, the proposal would allow an operator to elect to calculate the MAOP for the pipeline based on a higher stress level. This would allow operation at an increased pressure over that otherwise allowed for pipeline built since the Federal regulations were issued in the 1970s. To operate at the higher pressure, the operator would have to comply with more rigorous operation and maintenance requirements. Under 49 U.S.C. 60102(b), a gas pipeline safety standard must be practicable and designed to meet the need for gas pipeline safety and for protection of the environment. PHMSA must consider several factors in issuing a safety standard. These factors include the relevant available pipeline safety and environmental information, the appropriateness of the standard for the type of pipeline, the reasonableness of the standard, and reasonably identifiable or estimated costs and benefits. PHMSA has considered these factors in developing this proposed rule and provides its analysis in the preamble. PHMSA must also consider any comments received from the public and any comments and recommendations of the Technical Pipeline Safety Standards Committee (Committee). Both the public and the Committee have already reviewed the concepts underlying this proposal. As discussed above, PHMSA opened this docket and conducted a public meeting in 2006 to discuss the potential for increasing MAOP. PHMSA subsequently briefed the Committee. Finally, PHMSA has sought public comment on several requests for special permits to allow operation at increased MAOP. PHMSA considered the Committee discussion and public comment in developing this proposed rule. This notice of proposed rulemaking seeks public comment on the proposed rule; the Committee will formally consider it in a future meeting. PHMSA will address the public comments and the Committee's recommendations in preparing final action. C. The Proposed Rule C.1. In General The proposed rule would add a new section (§ 192.620) to Subpart L—Operations. This new section would explain what an operator would have to do to operate at a higher MAOP than currently allowed by the design requirements. Among the conditions set forth in proposed new § 192.620 is the requirement that the pipeline be designed and constructed to more rigorous standards. These additional design and construction standards are set forth in two additional new sections (§§ 192.112 and 192.328) to be located in Subpart C—Pipe Design and Subpart G—General Construction Requirements for Transmission Lines and Mains, respectively. In addition, the proposed rule would make necessary conforming changes to existing sections on incorporation by reference (§ 192.7) and maximum allowable operating pressure (§ 192.619). C.2. Proposed Amendment to § 192.7—Incorporation by Reference The proposed rule would add ASTM Designation: A 578/A578M—96 (Re-approved 2001) “Standard Specification for Straight-Beam Ultrasonic Examination of Plain and Clad Steel Plates for Special Applications” to the documents incorporated by reference under § 192.7. This specification prescribes standards for ultrasonic testing of steel plates. It is referenced in proposed new § 192.112. C.3. Proposed New § 192.112—Additional Design Requirements The proposed rule would add a new section to Subpart C—Pipe Design in 49 CFR Part 192. The new section, § 192.112 would prescribe additional design standards required for the steel pipeline to be qualified for operation at an alternative MAOP based on higher stress levels. These include requirements for rigorous steel chemistry and manufacturing practices and standards. Pipelines designed under these standards contain pipe with toughness properties to resist damage from outside forces and to control fracture initiation and growth. The considerable attention paid to the quality of seams, coatings, and fittings would prevent flaws leading to pipe failure. Unlike other design standards, § 192.112 would apply to a new or existing pipeline only to the extent that an operator elects to operate at a higher MAOP than allowed in current regulations. Proposed paragraph
(a)sets high manufacturing standards for the steel plate or coil used for the pipe. These include reducing oxygen content to produce more uniform chemistry in the plate and limiting the use of alloys in place of carbon. The pipe would be manufactured in accordance with level 2 of API Specification 5L, with the wall thickness and the ratio between diameter and wall thickness limited to prevent the occurrence of denting and ovality during construction or operation. Improved construction and inspection practices discussed elsewhere in this notice of proposed rulemaking also help prevent denting and ovality. Proposed paragraph
(b)addresses fracture control of the metal. First the metal would have to be tough; that is, deform plastically before fracturing. To the extent that the accepted industry toughness standard does not explicitly address the particular pipe used and expected operating conditions, correction factors would have to be used. Second, the pipe would have to pass several tests designed to reduce the risk that fractures would initiate. Third, to the extent it would be physically impossible for particular pipe to meet toughness standards under certain conditions, crack arrestors would have to be added to stop a fracture within a specified length. Proposed paragraph
(c)provides tests to verify that there are no deleterious imperfections in the plate or coil. The macro-etch test will identify flaws that impact the surface of the plate or coil. Interior flaws will show up in ultrasonic testing. In addition to the quality of the steel, the integrity of a pipe depends on the integrity of the seams. Proposed paragraph
(d)provides for a quality assurance program to assure tensile strength and toughness of the seams so that they resist breaking under regular operations. Hardness and ultrasonic tests would ensure that the seams also resist puncture damage. Proposed paragraph
(e)would require a longer mill test pressure for new pipe at a higher hoop stress than required by current regulations. The mill test is used to discover flaws introduced in manufacture. Because the pipeline will be operated at a higher stress level, the more rigorous mill test is needed to match (or exceed) the level of safety provided for pipelines operated at less than 72 percent of SMYS. Proposed paragraph
(f)would set rigorous standards for factory coating designed to protect the pipe from external corrosion. A quality assurance program would address all aspects of the application of coating that will protect the pipe. This would include applying a coating resistant to damage during installation of the pipe and examining the coated pipe to determine whether the applied coating is uniform and without gaps. Thin spots or holes in the coating make it more likely for corrosion to occur and more difficult to protect the pipe cathodically. Proposed paragraph
(g)would require that factory-made fittings, induction bends, and flanges be certified as to their serviceability. In addition, the amount of non-carbon added in the steel for these fittings and flanges would be limited. Proposed paragraph
(h)would require compressor design to limit the temperature of discharge to a specified maximum. Higher temperature can damage pipe coating. An exception to the specified maximum is allowed if testing of the coating shows it can withstand a higher temperature. The testing must be of sufficient length and rigor to detect coating integrity issues. C.4. Proposed New § 192.328—Additional Construction Requirements The proposed rule would also add a new section to Subpart G—General Construction Requirements for Transmission Lines and Mains. The new section, § 192.328, would prescribe additional construction requirements, including rigorous quality control and inspections, as conditions for operation of the steel pipeline at higher stress levels. These include requirements for rigorous quality control and inspection during construction. Unlike other construction standards, § 192.328 would apply to a new or existing pipeline only to the extent that an operator elects to operate at a higher MAOP than allowed in current regulations. Proposed paragraph
(a)would require a quality assurance plan for construction. Quality assurance, also called quality control, is common in modern pipeline construction. Activities such as lowering the pipe into the ditch and backfilling, if poorly done, can damage the pipe. Other construction activities such as nondestructive examination, if poorly done, will result in flaws remaining in the pipeline. Using a quality assurance plan helps to verify that the basic tasks done during construction of a pipeline are done correctly. Field application of coating is one of these basic tasks to be covered in a quality assurance plan. During the course of analyzing requests for special permits, PHMSA discovered field coatings at one construction site which were applied at lower temperature than needed for good adhesion to the pipe. Because coating is so critical to corrosion protection, proposed paragraph
(a)would require quality assurance plans to contain specific performance measures for field coating. Field coating would have to meet substantially the same standards as coating applied at the mill and the individuals applying the coating would have to be appropriately trained and qualified. Proposed paragraph
(b)would require non-destructive testing of all girth welds. Although past industry practice has been to non-destructively test only a sample of girth welds, no alternative exists for verifying the integrity of the remaining welds. The initial pressure testing once construction is complete does not detect flaws in girth welds. PHMSA believes that most modern pipeline construction projects include non-destructive testing of all girth welds. However, because the regulations do not require testing of all girth welds, an operator's records for pipelines already in operation may not be complete. To account for this, proposed paragraph
(b)would require testing records for only 95 percent of girth welds on existing segments. Proposed paragraph
(c)would require deeper burial of segments operated at higher stress level. A greater depth of cover decreases the risk of damage to the pipeline from excavation, including farming operations. Proposed paragraph
(d)addresses the results of the initial strength test and the assurance these results provide that the material in the pipeline is free of pre-operational flaws which can grow to failure over time. Since the initial strength test is a destructive test, it only detects flaws relatively close to failure during operation. This could leave in place smaller flaws that could grow more rapidly at higher stress level. To prevent this from occurring, the proposed paragraph would disqualify any segment which experiences a failure during the initial strength test indicative of systemic flaws in the material. Proposed paragraph
(e)addresses cathodic protection on an existing segment. Applying this requirement to new segments is unnecessary since current regulations already require cathodic protection within 12 months of construction. Proposed paragraph
(e)would prevent an existing segment not cathodically protected within 12 months after construction from qualifying for operation at a higher stress level under this proposed regulation. Proposed paragraph
(f)addresses electrical interference for new segments. During construction, it is relatively easy to identify sources of electrical interference which can impair future cathodic protection. Addressing interference at this time supports better corrosion control. The proposed additional operation and maintenance requirements of proposed § 192.620(d)(6) require operators electing operation at higher stress levels to address electrical interference on existing pipelines prior to raising the MAOP. C. 5. Proposed Amendment to § 192.619—Maximum Allowable Operating Pressure The proposed rule would amend existing § 192.619 by adding a new paragraph
(d)Proposed § 192.619(d) would provide an additional means to determine the MAOP for certain steel pipelines. In addition, the proposed rule would make conforming changes to existing paragraph
(a)of the section. C.6. Proposed New § 192.620—Operation at an Alternative MAOP The proposed rule would add a new section, § 192.620, to subpart L of part 192, to specify what an operator would have to do in order to elect an alternative MAOP based on higher stress levels. The proposed rule would apply to both new and existing pipelines. C.6.1. Calculating the Alternative MAOP Proposed § 192.620(a) Proposed paragraph
(a)describes how to calculate the alternative MAOP based on the higher stress levels. Qualifying segments of pipe would use higher design factors to calculate the alternative MAOP. For a segment currently in operation this would result in an increase in MAOP. No changes would be made in the design factors used for segments within compressor or meter stations or segments underlying certain crossings. C.6.2. Which Pipeline Qualifies Proposed § 192.620(b) Proposed paragraph
(b)describes which segments of new or existing pipeline are qualified for operation at the alternative MAOP. The alternative MAOP would be allowed only in Class 1, 2, and 3 locations. Only steel pipelines meeting the rigorous design and construction requirements of §§ 192.112 and 192.328 and monitored by supervisory data control and acquisition systems would qualify. Mechanical couplings in lieu of welding would not be allowed. Although the special permits did not expressly mention mechanical couplings, PHMSA would not have granted a special permit if the pipeline involved had mechanical couplings. C.6.3. How an Operator Selects Operation Under This Section Proposed §§ 192.620(c)(1) and
(2)Proposed paragraphs (c)(1) and
(2)would require an operator to notify PHMSA when it elects to establish the MAOP under this section. An operator notifies PHMSA of the election by submitting a certification by a senior executive that the pipeline meets the rigorous additional design and construction regulations of this proposed rule. A senior executive must also certify that the operator has changed its operation and maintenance procedures to include the more rigorous additional operation and maintenance requirements of the proposed rule. In addition, a senior executive must certify that the operator has reviewed its damage prevention program in light of industry consensus standards and practices and made any needed changes to it to ensure that the program meets or exceeds those standards or practices. An operator would have to submit the certification at least 180 days prior to commencing operations at the MAOP established under this section. This will provide PHMSA sufficient time for appropriate inspection which may include checks of the manufacturing process, visits to the pipeline construction sites, analysis of operating history of existing pipelines, and review of test records, plans, and procedures. C.6.4. Initial Strength Testing Proposed § 192.620(c)(3) Proposed paragraph (c)(3) addresses initial strength testing requirements. In order to establish the MAOP under this section, an operator would have to perform the initial strength testing of a new segment at a pressure at least as great as 125 percent of the MAOP. Since an existing pipeline was previously operated at a lower MAOP, it may have been initially tested at a pressure less than 125 percent of the higher MAOP allowed under this section. If so, paragraph
(c)would allow the operator to elect to conduct a new strength test in order to raise the MAOP. C.6.5. Operation and Maintenance Proposed § 192.620(c)(4) Proposed paragraph (c)(4) would require an operator to comply with the additional operating and maintenance requirements of paragraph (d). Compliance with these additional requirements is required if an operator elects to calculate the MAOP for a segment under paragraph
(a)and notifies PHMSA of that election under paragraph (c)(1) of this section. C.6.6. New Construction and Maintenance Tasks Proposed § 192.620(c)(5) Proposed paragraph (c)(5) addresses the need for competent performance of both new construction, and future maintenance activities, to ensure the integrity of the segment. PHMSA now requires operators to ensure that individuals who perform pipeline operation and maintenance activities are qualified. During a 2005 review of the qualifications program, PHMSA discussed the need to ensure that construction-related activities are properly done: We also have anecdotal information about errors in construction and the problems they cause. One incident [in late 2006] caused serious concern within PHMSA. The incident involved a dig-in by the pipeline company during construction near a large school. If the released gas had ignited, it could have resulted in a catastrophe exceeding the one that led to enactment of the Natural Gas Pipeline Safety Act of 1968. Although the construction project was not new construction, the distinctions between new construction and maintenance are often blurred, and excavation of the right-of-way of an active pipeline for any form of construction requires careful safety oversight. Federal and State inspectors can point to numerous situations in which they found dents or coating damage probably caused by poor backfill, pipeline handling, or equipment damage likely occurring during construction. When these problems become evident after the line has been in operation many years, it is too late for either remediation or enforcement action. Occasionally we have been able to address problems discovered soon after construction. As an example, a multi-agency investigation into construction of a natural gas transmission line in the mid-1990s uncovered numerous violations of pipeline safety and other environmental laws. Our enforcement order directed the operator to undertake a program to remediate the problems associated with numerous instances of improper backfill. Finally, we analyzed the pipeline incident data. In the first analysis, we reviewed the incidents from 1984 through 2005 where the operator had noted construction as either the primary or a secondary causal factor. Although the number of incidents is small, we observe a trend line increasing for both gas transmission and hazardous liquid pipelines. This is contrary to the general trend in pipeline incidents. We next looked at incidents in which we suspect construction issues were involved, incidents occurring within two years of construction of the pipeline. We eliminated those incidents clearly not caused by construction error, such as excavation damage occurring during operation of the line. When we add these suspected construction-related incidents to those clearly involving construction error, the trend line, for both gas transmission and hazardous liquid pipelines, is sloped more steeply upward. FDMS Docket ID PHMSA-RSPA-2004-19857-56, p. 2. Proposed paragraph (c)(5) would require operators seeking to operate at the higher stress levels allowed under this section to take steps designed to reduce incidents caused by errors during new construction and maintenance activities. As part of the 2005 review of the qualifications program, PHMSA sought comment on a broad approach to ensuring that construction-related activities are done properly. Proposed paragraph (c)(5) would incorporate this approach. The approach would allow an operator to select an appropriate way to verify the proper performance of a construction-related activity. For example, non-destructive testing of all girth welds will significantly reduce the risk of a future weld failure. An operator could also effectively use quality controls during construction or qualify the individuals performing the tasks. Both industry consensus standards, and subpart N, provide models for qualifying individuals performing safety tasks. C.6.7. Recordkeeping Proposed § 192.620(c)(6) Proposed paragraph (c)(6) clarifies recordkeeping requirements for operators electing to establish the MAOP under this section. Existing regulations, such as §§ 192.13, 192.517(a), and 192.709, already require operators to maintain records applicable to this section. However, because the additional requirements proposed in this section address requirements found in other subparts of part 192, the recordkeeping requirements may cause confusion. For example, proposed § 192.620(d)(9) would require a baseline assessment for integrity for a segment operated at the higher stress level regardless of its potential impact on a high consequence area. Section 192.947 requires operators to maintain records of baseline assessments for the useful life of the pipeline. However, proposed new § 192.620 would be in subpart L. Section 192.709 requires an operator to retain records for an inspection done under subpart L for a more limited time. Accordingly, this paragraph would clarify the need to maintain all records demonstrating compliance for the useful life of the pipeline. C.7. Additional Operation and Maintenance Requirements Proposed § 192.620(d) Paragraph
(d)sets forth 11 operating and maintenance requirements that supplement the existing requirements in part 192. Current § 192.605 requires an operator to develop operation and maintenance procedures to implement the requirements of subpart L and M. Since proposed § 192.620(d) is in subpart L, an operator would have to develop and follow the operation and maintenance procedures developed under this section. These include requirements for an operator to evaluate and address the issues associated with operating at higher pressures. Through its public education program, an operator would inform the public of any risks attributable to higher pressure operations. The additional operating and maintenance requirements address the two main risks the pipelines face, excavation damage and corrosion, through a combination of traditional practices and integrity management. Traditional practices include cathodic protection, control of gas quality, and maintenance of burial depth. Integrity management includes internal inspection on a periodic basis to identify and repair flaws before they can fail. These are discussed in more detail below. C.7.1. Threat Assessments Proposed § 192.620(d)(1) Proposed paragraph (d)(1) would require preparation of a threat assessment consistent with that done under integrity management to address the risks of operating at an increased stress level. This proposed requirement is not limited to high consequence areas, but applies to the entire segment operating at the increased stress level. This proposed requirement comes from our experience with integrity management and special permits. Under integrity management, operators develop a detailed threat matrix identifying the risks associated with operating their pipelines. These risks include both general risks faced by all pipelines and those risks specific to the particular pipeline and its environment. The matrix lists specific threats and the mitigative measures an operator is using to address each threat. As applied to the special permits, and in this proposed rule, this threat assessment ensures that an operator takes into account any additional risk operation at a higher stress level imposes. C.7.2. Public Awareness Proposed § 192.620(d)(2) Proposed paragraph (d)(2) would require an operator to include any people potentially impacted by operation at a higher stress level within the outreach effort in its public education program required under existing § 192.616. In order to identify this population, an operator would use a broad area measured from the centerline of the pipe plus, in high consequence areas, the potential impact circle recalculated to reflect operation at a higher stress level. This is intended to get necessary information for safety to the people potentially impacted by a failure. C.7.3. Emergency Response Proposed § 192.620(d)(3) Proposed paragraph (d)(3) addresses the additional needs for responding to emergencies for operation at higher stress levels. Consistent with the conditions imposed in the special permits, and past experience with response issues, the paragraph would require methods such as remote control valves to provide more rapid shut-down in the event of an emergency. C.7.4. Damage Prevention Proposed § 192.620(d)(4) Proposed paragraph (d)(4) addresses one of the major risks of failure faced by a pipeline, damage from outside force such as damage occurring during excavation in the right-of-way. Although the improved toughness of pipe reduces the risk of damage, it does not prevent it and additional measures are appropriate for pipelines operating at higher stress levels. This paragraph proposes to add several new or more specific measures to existing requirements designed to prevent damage to pipelines from outside force. Additional attention to this area is important since the trend line for incidents caused by outside force on gas transmission pipelines between 2002 and 2006 is increasing. The first more specific measure, in proposed paragraph (d)(4)(i), addresses patrolling, required for all transmission pipelines by § 192.705. More frequent patrols of the right-of-way prevent damage by giving the operator more accurate and timely information about potential sources of ground disturbance and other outside force damage. These include both naturally occurring conditions, such as wash outs, and human activity, such as construction in the vicinity of the pipeline. The proposed requirement would be for patrols on the same frequency as for hazardous liquid pipelines (i.e., a minimum of 26 times a year). This is slightly more frequent than included in the special permits, but PHMSA believes that it is appropriate for a rule of general applicability. The increased patrols that would be required by this rulemaking, however, represent the majority of the incremental costs imposed by this rule. Therefore, PHMSA specifically requests comment on whether the number of patrols required optimally balances the potential risk reduction and increase in burden. We seek information on: • Would patrolling less frequently such as four times per year (similar to requirements at highway and railroad crossings) provide a cost-effective alternative? • How often are pipelines that currently operate at 80% of SMYS patrolled? How effective are these patrols in providing accurate and timely information about potential sources of ground disturbance and other outside force damage? • How could operators incorporate patrolling in their risk management plan if PHMSA did not mandate a fixed frequency? Other more specific or new measures to address damage prevention include developing and implementing a plan to monitor and address ground movement, a proposed requirement of paragraph (d)(4)(ii). Ground movement such as earthquakes, landslides, and nearby demolition or tunneling can damage pipe. Since pipelines near the surface are more likely to be damaged by surface activities, proposed paragraph (d)(4)(iii) would require an operator to maintain the depth of cover over a pipeline. Line-of-sight markers alert excavators, emergency responders, and the general public of the presence and general location of pipelines. Proposed paragraph (d)(4)(iv) would require these markers to improve both damage prevention and enhance public awareness. Damage prevention programs are improving because of the work being done by the Common Ground Alliance, a national, non-profit educational organization dedicated to preventing damage to pipelines and other underground utilities. The Common Ground Alliance has compiled best practices applicable to all parties relevant to preventing damage to underground utilities and actively promotes their use. Proposed paragraph (d)(4)(v) would require operators electing to operate at higher stress levels to evaluate their damage prevention programs in light of industry consensus standards and practices. An operator would have to identify the standards or practices used and make appropriate changes to the damage prevention program. The resulting program would have to meet or exceed the identified standards or practices. This approach is consistent with annual reviews of operation and maintenance programs under § 192.605. An operator would have to include in the certification required under proposed § 192.620(c)(1) that the review and upgrade has occurred. Proposed paragraph (d)(4) would also require one measure not included as a condition in the special permits, namely a right-of-way management plan. In the past several years, PHMSA has seen recurring similarities in pipeline accidents on construction sites. In each case, better management of the pipeline right-of-way could have prevented the accidents. Better management would include closer attention to the qualifications of individuals critical to damage prevention, better marking practices, and closer oversight of the excavation. In 2006, PHMSA issued two advisory bulletins to alert operators of the need to pay closer attention to these important damage prevention issues. The first advisory bulletin described three accidents in which either operator personnel or contractors damaged gas transmission pipelines during excavation in the rights-of-way (ADB-06-01; 71 FR 2613; Jan. 17, 2006). This bulletin advised operators to pay closer attention to integrating operator qualification regulations into excavation activities and providing that excavation is included as a covered task under operator qualification programs required by subpart N. The second advisory bulletin pointed to an additional excavation accident where the excavator struck an inadequately marked gas transmission pipeline (ADB-06-03; 71 FR 67703; Nov. 22, 2006). This advisory bulletin advised pipeline operators to pay closer attention to locating and marking pipelines before excavation activities begin and pointed to several good practices as well as the best practices described by the Common Ground Alliance. This proposed paragraph would require an operator electing to operate at a higher stress level to develop a plan to manage the protection of their right-of-way from excavation activities. Each operator already has a damage prevention program, under § 192.614, and a program to ensure qualification of pipeline personnel, under subpart N. This management plan would require the operator to integrate activities under those programs to provide better protection for the right-of-way of pipeline operated at higher stress level. C.7.5. Internal Corrosion Control Proposed § 192.620(d)(5) Proposed paragraph (d)(5) would add specificity to the requirements for internal corrosion control now in pipeline safety standards for pipelines operated at higher stress levels. These internal corrosion control programs would have to include mandated use of filter separators, gas quality monitoring equipment, cleaning pigs, and inhibitors. Maximum levels of contaminants that could promote corrosion are set to be monitored quarterly. PHMSA believes the levels are fully consistent with the requirements in Federal Energy Regulatory Commission tariffs designed to prevent internal corrosion. C.7.6. External Corrosion Control Proposed §§ 192.620(d)(6), (7), and
(8)Since external corrosion is one of the greatest risks to the integrity of pipelines operating at higher stress levels, the special permits and this proposed rule contain several measures to prevent it from occurring. These include use of effective coating, addressing interference, early installation of cathodic protection, confirming the adequacy of coating and cathodic protection and diligent monitoring of cathodic protection levels. The quality of the coating and installation of cathodic protection are addressed in proposed sections on design and construction. The remaining external corrosion provisions are addressed here. Interference from overhead power lines, railroad signaling, stray currents, or other sources can interfere with the cathodic protection system and, if not properly mitigated, even accelerate the rate of external corrosion. Proposed paragraph (d)(6) would require an operator to identify and address interference early before damage to the pipe can occur. Proposed paragraph (d)(7) would require an operator to confirm both the effectiveness of the coating and the adequacy of the cathodic protection system soon after deciding on operation at higher stress levels. This is accomplished through indirect assessment, such as a close interval survey. After completion of the baseline internal inspection required by proposed § 192.620(d)(9), an operator would have to integrate the results of that inspection with the indirect assessments. An operator would have to also take remedial action to correct any inadequacies. In high consequence areas, an operator would have to periodically repeat indirect assessment to confirm that the cathodic protection system remains as functional as when first installed. Proposed paragraph (d)(8) would require more rigorous attention to ensure adequate levels of cathodic protection. Regulations now require an operator discovering a low reading, meaning a reduced level of protection, must act promptly to correct the deficiency. This section puts an outer limit of six months on the time for completion of the remedial action and restoration of an adequate level of cathodic protection. In addition, the operator would have to confirm, through a close interval survey, that adequate cathodic protection levels were restored. C.7.7 Integrity Assessments Proposed §§ 192.620(d)(9) and
(10)Among the most important ways of ensuring integrity during pipeline operations are the assessments done under the integrity management program requirements in subpart O. Proposed paragraphs (d)(9) and (d)(10) would require operators electing to operate at higher stress levels to perform both baseline and periodic assessments of the entire segment operating at the higher stress level, regardless of whether the segment is located in a high consequence area. The operator would have to use both a geometry tool and a high resolution magnetic flux tool for the entire segment. In very limited circumstances in which internal inspection is not possible because internal inspection tools cannot be accommodated, such as a short crossover segment connecting two pipelines in a right-of-way, an operator would substitute direct assessment. The operator would then integrate the information provided by these assessments with testing done under previously described paragraphs. This analysis would form the basis for mitigating measures described in the operator's threat assessment, and prompt repairs under proposed paragraph (d)(11). C.7.8. Repair Criteria Proposed § 192.620(d)(11) The repair criteria under proposed paragraph (d)(11) for anomalies in a segment operating at a higher stress level are slightly more conservative than for other pipeline, including pipeline covered by a integrity management program. With the tougher pipe, better coating and seams, and careful attention to damage prevention and corrosion protection, a pipeline operated at higher stress levels should experience few anomalies needing evaluation. The higher stress levels of operation can allow more rapid growth of anomalies. Therefore, more conservative repair criteria are needed. C.8. Overpressure Protection Proposed § 192.620(e) The alternative MAOP is higher than the upper limit of the required overpressure protection under existing regulations. Proposed paragraph
(e)would increase the overpressure protection limit to 104 percent of the MAOP, which is 83 percent of SMYS, for a segment operating at the alternative MAOP. D. Regulatory Analyses and Notices D.1. Privacy Act Statement Anyone may search the electronic form of all comments received for any of our dockets. You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477). D.2. Executive Order 12866 and DOT Policies and Procedures Due to billions of dollars in benefits, the Department of Transportation
(DOT)considers this proposed rulemaking to be a significant regulatory action under section 3(f)(1) of Executive Order 12866 (58 FR 51735; Oct. 4, 1993). Therefore, DOT submitted it to the Office of Management and Budget for review. This proposed rulemaking is also significant under DOT regulatory policies and procedures (44 FR 11034; Feb. 26, 1979). PHMSA prepared a draft Regulatory Evaluation of the proposed rule. A copy is in Docket ID PHMSA-2005-23447. If you have comments about the Regulatory Evaluation, please file them as described under the ADDRESSES heading of this document. PHMSA estimates that the proposed rule will result in gas transmission pipeline operators uprating 3,500 miles of existing pipelines to an alternative MAOP. Additionally PHMSA estimates that, in the future, the proposed rule will result in an annual additional 700 miles of new pipeline whose operators elect to use an alternative MAOP. PHMSA expects the benefits of the proposed rule to be substantial and greatly in excess of $100 million per year. This expectation is based on quantified benefits in excess of $100 million per year (see below), coupled with un-quantified benefits associated with the proposed rule that industry and PHMSA technical staff have identified. The expected benefits of the proposed rule that cannot be readily quantified include: • Reductions in incident consequences • Increases in pipeline capacity • Increases in the amount of natural gas filling the line, commonly called line pack • Reductions in capital expenditures on compressors for new pipelines • Reductions in adverse environmental impacts In the case of new pipelines, the ability to use an alternative MAOP will make it possible to transport more product. Quantifying the value of this increased capacity is difficult, and no estimate has been developed for this analysis. Nonetheless, PHMSA expects the value of increased capacity due to use of alternative MAOP by gas pipelines to be significant. Estimates made with respect to the proposed trans-Alaskan gas pipeline include an estimated increase of 14.2 million standard cubic feet of gas per day. In areas where production is already well-established, there is an even greater potential for increased pipeline capacity. For example, one recipient of a special permit estimated a daily increase of at least 62 million standard cubic feet of gas. Similarly, increases in line pack will produce enormous benefits which are difficult to quantify. The reduced amount of exterior storage capacity resulting from increased line pack may result in capital or operation and maintenance savings for the pipelines or their customers. Increased line pack increases the ability to continue gas delivery during short outages such as maintenance and to increase the amount of gas quickly during peak periods. These benefits are not readily quantifiable. The quantified benefits consist of • Fuel cost savings • Capital expenditure savings on pipe for new pipelines Of these, pipeline fuel cost savings is the most important contributor to the estimated benefits. Although these quantified benefits do not capture the full benefits of the proposed rule, they exceed $100 million per year. As a consequence of the proposed rule, PHMSA estimates that pipeline operators will realize annually recurring benefits due to fuel cost savings of $58.8 million that begin in the initial year after the rule goes into effect and $9.8 million that begin in each subsequent year. Additionally, PHMSA estimates that each year pipeline operators will realize one-time benefits for savings in capital expenditures of $54.6 million (since 700 miles of new pipeline operating at an alternative MAOP are added each year, the one-time benefits resulting from this added mileage will be the same each year.) The benefits of the proposed rule over 20 years are expected to be as presented in the following table: Table D.2.-1—Summary and Total for the Estimated Benefits of the Proposed Rule Benefit Estimate for year 1 (millions of dollars per year) Estimate of new benefits occurring in each subsequent year (millions of dollars per year) Reduced incident consequences Not quantified Not quantified. Fuel cost savings $49.0 (recurring) $0.0 (recurring). Reduced capital expenditures $54.6 (non-recurring) $54.6 (non-recurring). Increased pipeline capacity Not quantified Not quantified. Increased line pack Not quantified Not quantified. Reduced adverse environmental impacts Not quantified Not quantified. Other expected benefits Not quantified Not quantified. Total $49.0 recurring + $54.6 non-recurring $54.6 non-recurring. The present value of the benefits evaluated over 20 years at a three percent discount rate would be $1,541 million, while the present value of the benefits over 20 years at a seven percent discount rate would be $1,098 million. For both discount rates, the annualized benefits would be $103.6 million. PHMSA expects the costs attributable to the proposed rule are most likely to be incurred by operators for • Performing baseline internal inspections • Performing additional internal inspections • Performing anomaly repairs • Installing remotely controlled valves on either side of high consequence areas • Preparing threat assessments • Patrolling pipeline rights-of-way • Preparing the paperwork notifying PHMSA of the decision to use an alternative MAOP Overall, the costs of the proposed rule over 20 years are expected to be as presented in the following table: TABLE D.2.-2—Summary and Totals for the Estimated Costs of the Proposed Rule Cost item Cost by year after implementation (thousands of dollars) 1st 2nd-10th 11th 12th-20th Baseline internal inspections $29,119 None None None. Additional internal inspections None None $17,471 $2,912 each year. Anomaly repairs $1,015 None $1,218 $203 each year. Remotely controlled valves $3,528 $588 each year $588 $588 each year. Threat assessments $180 $30 each year $30 $30 each year. Patrolling $10,080 $11,760 to $25,200 $26,880 $28,560 to $42,000. Notifying PHMSA Nominal Nominal Nominal Nominal. Total $43,922 $618 each year plus patrolling costs $46,187 $3,733 each year plus patrolling costs. The present value of the costs evaluated over 20 years at a three percent discount rate would be $435 million, while the present value of the costs over 20 years at a seven percent discount rate would be $293 million. The annualized costs at the 3% discount rate would be $29 million, while the annualized costs at the 7% discount rate would be $28 million. Since the present value of the quantified benefits ($1,541 million at three percent and $1,098 million at seven percent) exceeds the present value of the costs ($435 million at three percent and $293 million at seven percent), the proposed rule is expected to be cost-beneficial. D.3. Regulatory Flexibility Act Under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ), PHMSA must consider whether rulemaking actions would have a significant economic impact on a substantial number of small entities. The proposed rule would affect operators of gas pipelines. Based on annual reports submitted by operators, there are approximately 1,450 gas transmission and gathering systems and an equivalent number of distribution systems potentially affected by the proposed rule. The size distribution of these operators is unknown and must be estimated. The affected gas transmission systems all belong to NAICS 486210, Pipeline Transportation of Natural Gas. In accordance with the size standards published by the Small Business Administration, a business with $6.5 million or less in annual revenue is considered a small business in this NAICS. Based on August 2006 information from Dunn & Bradstreet on firms in NAICS 486210, PHMSA estimates that 33% of the gas transmission and gathering systems have $6.5 million or less in revenue. Thus, PHMSA estimates that 479 of the gas transmission and gathering systems affected by the proposed rule will have $6.5 million or less in annual revenue. PHMSA does not expect that any local gas distribution companies or gathering systems will be taking advantage of the potential to use an alternative MAOP. The proposed rule mandates no action by gas transmission pipeline operators. Rather, it provides those operators with the option of using an alternative MAOP in certain circumstances, when certain conditions can be met. Consequently, it imposes no economic burden on the affected gas pipeline operators, large or small. Based on these facts, I certify that this proposed rule will not have a substantial economic impact on a substantial number of small entities. PHMSA invites public comment on impacts this proposed rule would have on small entities. D.4. Executive Order 13175 PHMSA has analyzed this proposed rulemaking according to Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Because the proposed rulemaking would not significantly or uniquely affect the communities of the Indian tribal governments, nor impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply. D.5. Paperwork Reduction Act This proposed rule adds notification and threat assessment paperwork requirements on pipeline operators voluntarily choosing an alternative MAOP for their pipelines. Based on analysis of the regulation, there will be an estimated 2,712 total annual burden hours attributable to the notification and threat assessment requirements in the first year. In following years, the annual burden is expected to decrease to 452 hours. The associated cost of these annual burden hours is $180,289 in year one, and $30,048 thereafter. No other burden hours and associated costs are expected. See the Paperwork Reduction Act analysis in the docket for a more detailed explanation. PHMSA seeks comments on these projections. D.6. Unfunded Mandates Reform Act of 1995 This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more in any one year to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the proposed rulemaking. D.7. National Environmental Policy Act PHMSA has analyzed the proposed rulemaking for purposes of the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* ). The proposed rulemaking would require limited physical change or other work that would disturb pipeline rights-of-way. In addition, the proposed rulemaking would codify the terms of special permits PHMSA has granted. Although PHMSA sought public comment on environmental impacts with respect to most requests for special permits to allow operation at pressures based on higher stress levels, no commenters addressed environmental impacts. PHMSA has preliminarily determined the proposed rulemaking is unlikely to significantly affect the quality of the human environment. An environmental assessment document is available for review in the docket. PHMSA will make a final determination on environmental impact after reviewing the comments to this proposal. D.8. Executive Order 13132 PHMSA has analyzed the proposed rulemaking according to Executive Order 13132 (64 FR 43255, Aug. 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The proposed rule does not have a substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. The proposed rule does not impose substantial direct compliance costs on State or local governments. Further, no consultation is needed to discuss the preemptive effect of the proposed rule. The pipeline safety law, specifically 49 U.S.C. 60104(c), prohibits State safety regulation of interstate pipelines. The same law provides that Federal regulation would not preempt state law for intrastate pipelines. In addition, 49 U.S.C. 60120(c) provides that the Federal pipeline safety law “does not affect the tort liability of any person.” It is these statutory provisions, not the proposed rule, that govern preemption of State law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. D.9. Executive Order 13211 This proposed rulemaking is likely to increase the efficiency of gas transmission pipelines. A gas transmission pipeline operating at an increased MAOP will result in increased capacity, fuel savings, and flexibility in addressing supply demands. This is a positive rather than an adverse effect on the supply, distribution, and use of energy. Thus this proposed rulemaking is not a “significant energy action” under Executive Order 13211. Further, the Administrator of the Office of Information and Regulatory Affairs has not identified this proposed rule as a significant energy action. List of Subjects in 49 CFR Part 192 Design pressure, Incorporation by reference, Maximum allowable operating pressure, and Pipeline safety. For the reasons provided in the preamble, PHMSA proposes to amend 49 CFR part 192 as follows: PART 192—TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE: MINIMUM FEDERAL SAFETY STANDARDS 1. The authority citation for part 192 continues to read as follows: Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, and 60118; and 49 CFR 1.53. 2. In § 192.7, in paragraph (c)(2) amend the table of referenced material by redesignating items C.(6) through C.(13) as C.(7) through C.(14) and adding a new item C.(6) to read as follows: § 192.7 Incorporation by reference.
(c)* * *
(2)* * * Source and name of referenced material 49 CFR reference * * * * * * * C.* * *
(6)ASTM Designation: A 578/A578M—96 (Re-approved 2001) “Standard Specification for Straight-Beam Ultrasonic Examination of Plain and Clad Steel Plates for Special Applications § 192.112(c)(2)(ii) * * * * * * * 3. Add § 192.112 to subpart C to read as follows: § 192.112 Additional design requirements for steel pipe using alternative maximum allowable operating pressure. For a new or existing pipeline segment to be eligible for operation at the alternative maximum allowable operating pressure calculated under § 192.620, a segment must meet the following additional design requirements: To address this design issue: The pipeline segment must meet this additional requirement:
(a)General standards for the steel pipe
(1)The plate or coil used for the pipe must be micro-alloyed, fine grain, fully killed, continuously cast steel with calcium treatment.
(2)The carbon equivalents of the steel used for pipe must not exceed 0.23 percent by weight, as calculated by the Ito-Bessyo formula (Pcm formula), for wall thickness of one inch (25 mm) or less, and 0.25 percent for wall thickness greater than one inch (25 mm).
(3)The ratio of the specified outside diameter of the pipe to the specified wall thickness must be less than 100. The wall thickness must prevent denting and ovality anomalies during construction, strength testing and anticipated operational stresses.
(4)The pipe must be manufactured using API Specification 5L, product specification level 2 (incorporated by reference, see § 192.7) for maximum operating pressures and minimum operating temperatures and other requirements under this section.
(b)Fracture control
(1)The toughness properties for pipe must address the potential for initiation, propagation and arrest of fractures in accordance with:
(i)API Specification 5L (incorporated by reference, see § 192.7); and
(ii)Any correction factors needed to address pipe grades, pressures, temperatures, or gas compositions not expressly addressed in API Specification 5L, product specification level 2 (incorporated by reference, see § 192.7).
(2)Fracture control must:
(i)Ensure resistance to fracture initiation while addressing the full range of operating temperatures, pressures and gas compositions the pipeline is expected to experience;
(ii)Address adjustments to toughness of pipe for each grade used and the decompression behavior of the gas at operating parameters;
(iii)Ensure at least 99 percent probability of fracture arrest within eight pipe lengths with a probability of not less than 90 percent within five pipe lengths; and
(iv)Include fracture toughness testing that is equivalent to that described in supplementary requirements SR5A, SR5B, and SR6 of API Specification 5L (incorporated by reference, see § 192.7) and ensures ductile fracture and arrest with the following exceptions:
(A)The results of the Charpy impact test prescribed in SR5A must indicate at least 80 percent minimum shear area for any single test on each heat of steel; and
(B)The results of the drop weight test prescribed in SR6 must indicate 80 percent average shear area with a minimum single test result of 60 percent shear area for any steel test samples.
(3)If it is not physically possible to achieve the pipeline toughness properties of paragraphs (b)(1) and
(2)of this section, mechanical crack arrestors of proper design and spacing must be used to ensure fracture arrest as described in paragraph (b)(2)(iii) of this section.
(c)Plate/coil quality control
(1)There must be a comprehensive mill inspection program to check for defects and inclusions affecting pipe quality.
(2)This mill inspection program must include:
(i)A macro etch test or other equivalent method to identify inclusions that may form centerline segregation during the continuous casting process. Use of sulfur prints is not an equivalent method. The test must be carried out on the first or second slab of each sequence graded with an acceptance criteria of at least 2 on the Mannesmann scale or equivalent; and
(ii)An ultrasonic test of the ends and at least 50 percent of the surface of the plate/coil or pipe to identify imperfections that impair serviceability such as laminations, cracks, and inclusions. At least 95 percent of the lengths of pipe manufactured must be tested. For pipeline designed after [the effective date of the final rule], the test must be done in accordance with Level B of ASTM A 578/A578M (incorporated by reference, see § 192.7) or equivalent.
(d)Seam quality control
(1)There must be a quality assurance program for pipe seam welds:
(i)To assure tensile strength provided in API Specification 5L (incorporated by reference, see § 192.7) for appropriate grades; and
(ii)To assure toughness of at least 35 foot-pounds at 32 degrees Fahrenheit (or minimum operating temperature).
(2)There must be a hardness test, using Vickers
(Hv10)hardness test method or equivalent test method to assure a maximum hardness of 280 Vickers of the following:
(i)A cross section of the weld seam of one pipe from each heat plus one pipe from each welding line per day; and
(ii)For each sample cross section, a minimum of 13 readings (three for each heat affected zone, three in the weld metal, and two in each section of pipe base metal).
(3)All of the seams must be ultrasonically tested after cold expansion and hydrostatic testing.
(e)Mill hydrostatic test
(1)All pipe to be used in a new segment must be hydrostatically tested at the mill at a test pressure corresponding to a hoop stress of 95 percent SMYS for 20 seconds, including the allowance for end loading stresses.
(2)Pipe previously in operation must have been hydrostatically tested at the mill at a test pressure corresponding to a hoop stress of 90 percent SMYS for 10 seconds.
(f)Coating
(1)The pipe must be protected against external corrosion by non-shielding, fusion bonded epoxy coating.
(2)Coating on pipe used for trenchless installation must resist abrasions and other damage possible during installation.
(3)A quality assurance inspection and testing program for the coating must cover the surface quality of the bare pipe, surface cleanliness and chlorides, blast cleaning, application temperature control, adhesion, cathodic disbondment, moisture permeation, bending, coating thickness, holiday detection, and repair.
(g)Fittings and flanges
(1)There must be certification records of flanges, factory induction bends and factory weld ells.
(2)If the carbon equivalents of flanges, bends and ells are greater than 0.42 percent by weight, the qualified welding procedures must include a pre-heat procedure.
(h)Compressor stations
(1)A compressor station must be designed to limit discharge temperature to a maximum of 120 degrees Fahrenheit (49 degrees Centigrade) or the higher temperature allowed in paragraph (h)(2) of this section.
(2)If testing shows that the coating will withstand a higher temperature in long-term operations, the compressor station may be designed to limit discharge temperature to that higher temperature. 4. Add § 192.328 to subpart G to read as follows: § 192.328 Additional construction requirements for steel pipe using alternative maximum allowable operating pressure. For a new or existing pipeline segment to be eligible for operation at the alternative maximum allowable operating pressure calculated under § 192.620, a segment must meet the following additional construction requirements: *To address this construction issue:* *The pipeline segment must meet this additional construction requirement:*
(a)Quality assurance
(1)The construction of the segment must be done under a quality assurance plan addressing pipe inspection, hauling and stringing, field bending, welding, non-destructive examination of girth welds, applying and testing field applied coating, lowering of the pipeline into the ditch, padding and backfilling, and hydrostatic testing.
(2)The quality assurance plan for applying and testing field applied coating to girth welds must be:
(i)Equivalent to that required under § 192.112(f)(3) for pipe; and
(ii)Performed by an individual with the knowledge, skills, and ability to assure effective coating.
(b)Girth welds
(1)All girth welds on a new segment must be non-destructively examined in accordance with § 192.243(b) and (c).
(2)At least 95 percent of girth welds on a segment that was constructed prior to the effective date of this rule must have been non-destructively examined in accordance with § 192.243(b) and (c).
(c)Depth of cover
(1)Notwithstanding any lesser depth of cover otherwise allowed in § 192.327, there must be at least 36 inches (914 millimeters) of cover.
(2)In areas where deep tilling or other activities could threaten the pipeline, the top of the pipeline must be installed at least one foot below the deepest expected penetration of the soil.
(d)Initial strength testing
(1)The segment must not experience any failures indicative of fault in material during strength testing, including initial hydrostatic testing.
(e)Cathodic protection
(1)If the segment has been in operation, the cathodic protection system on the segment must have been operational within 12 months of construction.
(f)Interference currents
(1)For a new segment, the construction must address the impacts of induced alternating current from parallel electric transmission lines and other known sources of potential interference with corrosion control. 5. Amend § 192.619 by revising paragraph
(a)introductory text and by adding paragraph
(d)to read as follows: § 192.619 Maximum allowable operating pressure: Steel or plastic pipelines.
(a)No person may operate a segment of steel or plastic pipeline at a pressure that exceeds a maximum allowable operating pressure determined under paragraph
(c)or
(d)of this section, or the lowest of the following:
(d)The operator of a segment of steel pipeline meeting the conditions prescribed in § 192.620(b) may elect to operate the segment at a maximum allowable operating pressure determined under § 192.620(a). 6. Add § 192.620 to subpart L to read as follows: § 192.620 Alternative maximum allowable operating pressure for certain steel pipelines.
(a)*How does an operator calculate the alternative maximum allowable operating pressure?* An operator calculates the alternative maximum allowable operating pressure by using different factors in the same formulas used for calculating maximum allowable operating pressure under § 192.619(a) as follows:
(1)In determining the design pressure under § 192.105, use a design factor determined in accordance with § 192.111 (b), (c), or
(d)or, if none of these paragraphs apply, in accordance with the following table: Class location Design factor
(F)1 0.80 2 0.67 3 0.56
(2)The maximum allowable operating pressure is the lower of the following:
(i)The design pressure of the weakest element in the segment, determined under subparts C and D of this part.
(ii)The pressure obtained by dividing the pressure to which the segment was tested after construction by a factor determined in the following table: Class location Factor 1 1.25 2 1.50 3 1.50
(b)*When may an operator use the alternative maximum allowable operating pressure calculated under paragraph
(a)of this section?* An operator may use a maximum allowable operating pressure calculated under paragraph
(a)of this section if the following conditions are met:
(1)The segment is in a Class 1, 2, or 3 location;
(2)The segment is constructed of steel pipe meeting the additional design requirements in § 192.112;
(3)A supervisory control and data acquisition system provides remote monitoring and control of the segment;
(4)The segment meets the additional construction requirements described in § 192.328;
(5)The segment does not contain any mechanical couplings used in place of girth welds; and
(6)If a segment has been previously operated, the segment has not experienced any failure during normal operations indicative of a fault in material.
(c)*What is an operator electing to use the alternative maximum allowable operating pressure required to do?* If an operator elects to use the maximum allowable operating pressure calculated under paragraph
(a)of this section for a segment, the operator must do each of the following:
(1)Certify, by signature of a senior executive officer of the company, as follows:
(A)The segment meets the conditions described in subsection
(b)of this section; and
(B)The operating and maintenance procedures include the additional operating and maintenance requirements of subsection
(d)of this section; and
(C)The review and any needed program upgrade of the damage prevention program required by subsection (d)(4)(v) of this section has been completed.
(2)Notify PHMSA of its election with respect to a segment at least 180 days before operating at the alternative maximum allowable operating pressure by sending the certification to the Information Resources Manager as provided for reports under § 192.951.
(3)For each segment, do one of the following:
(i)Perform a strength test as described in § 192.505 at a test pressure of at least 125 percent of the maximum allowable operating pressure calculated under paragraph
(a)of this section; or
(ii)For a segment in existence prior to the effective date of this regulation, certify, under paragraph (c)(1) of this section, that the strength test performed under § 192.505 was conducted at a test pressure of at least 125 percent of the maximum allowable operating pressure calculated under paragraph
(a)of this section.
(4)Comply with the additional operation and maintenance requirements described in paragraph
(d)of this section.
(5)If the performance of a construction task affects the integrity of the segment, ensure that the task is performed properly by doing at least one of the following:
(i)Include quality controls during construction addressing performance of the task;
(ii)Use an integrity verification method that addresses performance of the task; or
(iii)Demonstrate that the individual performing the task has the knowledge, skills, and ability to do so.
(6)Maintain, for the useful life of the pipeline, records demonstrating compliance with paragraphs (b), (c)(5), and
(d)of this section.
(d)*What additional operation and maintenance requirements apply to operation at the alternative maximum allowable operating pressure?* In addition to compliance with other applicable safety standards in this part, if an operator establishes a maximum allowable operating pressure for a segment under paragraph
(a)of this section, an operator must comply with the additional operation and maintenance requirements as follows: *To address increased risk of a maximum allowable operating pressure based on higher stress levels in the following areas:* *Take the following additional step:*
(1)Assessing threats Develop a threat matrix consistent with § 192.917 to do the following:
(i)Identify and compare the increased risk of operating the pipeline at the increased stress level under this section with conventional operation; and
(ii)Describe procedures used to mitigate the risk.
(2)Notifying the public
(i)Recalculate the potential impact circle as defined in § 192.903 to reflect use of the alternative maximum operating pressure calculated under paragraph
(a)of this section and pipeline operating conditions; and
(ii)In implementing the public education program required under § 192.616, do the following:
(A)Include persons occupying property within 220 yards of the centerline and within the potential impact circle within the targeted audience; and
(B)Include information about the integrity management activities performed under this section within the message provided to the audience.
(3)Responding to an emergency in an area defined as a high consequence area in § 192.903
(i)Ensure that the identification of high consequence areas reflects the larger potential impact circle recalculated under paragraph (d)(2)(i) of this section.
(ii)If personnel response time to mainline valves on either side of the high consequence area exceeds one hour, provide remote valve control through a supervisory control and data acquisition system, other leak detection system, or an alternative method of control.
(iii)Remote valve control must include the ability to open and close the valve, monitor the position of the valve, and monitor pressure upstream and downstream.
(iv)A line break valve control system using differential pressure, rate of pressure drop or other widely-accepted method is an acceptable alternative to remote valve control.
(4)Protecting the right of way
(i)Patrol the right of way at intervals not exceeding 3 weeks, but at least 26 times each calendar year, to inspect for excavation activities, ground movement, wash outs, leakage, or other activities or conditions affecting the safety operation of the pipeline.
(ii)Develop and implement a plan to monitor for and mitigate occurrences of unstable soil and ground movement.
(iii)Maintain the depth of cover provided for new pipeline under § 192.327 or § 192.328(c). If observed conditions indicate the possible loss of cover, perform a depth of cover study and replace cover as necessary to restore the depth of cover.
(iv)Use line-of-sight line markers satisfying the requirements of § 192.707(d) except in agricultural areas, large water crossings or where prohibited by Federal Energy Regulatory Commission orders, permits, or local law.
(v)Review the damage prevention program under § 192.614(a) in light of national consensus standards and practices, to ensure the program provides adequate protection of the right-of-way. Identify the standards or practices considered in the review, and meet or exceed those standards or practices by incorporating appropriate changes into the program.
(vi)Develop and implement a right-of-way management plan to protect the segment from damage due to excavation activities.
(5)Controlling internal corrosion
(i)Develop and implement a program to monitor for and mitigate the presence of, deleterious gas stream constituents.
(ii)At points where gas with potentially deleterious contaminants enters the pipeline, use filter separators and gas quality monitoring equipment.
(iii)Use gas quality monitoring equipment that includes a moisture analyzer, chromatograph, and periodic hydrogen sulfide sampling.
(iii)Use cleaning pigs and inhibitors, and sample accumulated liquids.
(iv)Address deleterious gas stream constituents as follows:
(A)Limit carbon dioxide to 3 percent by volume;
(B)Allow no free water and otherwise limit water to seven pounds per million cubic feet of gas; and
(C)Limit hydrogen sulfide to 0.50 grain per hundred cubic feet of gas.
(v)Review the program at least quarterly based on the gas stream experienced and implement adjustments to monitor for, and mitigate the presence of, deleterious gas stream constituents.
(6)Controlling interference that can impact external corrosion
(i)Prior to operating an existing segment at a maximum allowable operating pressure calculated under this section, or within six months after placing a new segment in service at a maximum allowable operating pressure calculated under this section, address interference issues on the segment.
(ii)To address interference issues, do the following:
(A)Conduct an interference survey to detect the presence and level of any electrical current that could impact external corrosion;
(B)Analyze the results of the survey; and
(C)Take any remedial action needed to protect the segment from deleterious current.
(7)Confirming external corrosion control through indirect assessment
(i)Within six months after placing the cathodic protection of a new segment in operation, or within six months after recalculating the maximum allowable operating pressure of an existing segment under this section, assess the integrity of the coating and adequacy of the cathodic protection through an indirect method such as close-interval survey, direct current voltage gradient, or alternating current voltage gradient.
(ii)Remediate any construction damaged coating with a voltage drop classified as moderate or severe indication under section 4, table 3 of NACE RP-0502-2002 (incorporated by reference, see § 192.7).
(iii)Within six months after completing the baseline internal inspection required under paragraph
(9)of this section, integrate the results of the indirect assessment required under paragraph (7)(i) of this section with the results of the baseline internal inspection and take any needed remedial actions.
(iv)For all segments in high consequence areas, do periodic assessments as follows:
(A)Conduct periodic close interval surveys with current interrupted to confirm voltage drops in association with periodic assessments under subpart O of this part.
(B)Locate pipe-to-soil test stations at half-mile intervals within each high consequence area ensuring at least one station is within each high consequence area.
(C)Integrate the results with those of the baseline and periodic assessments for integrity done under paragraphs (d)(9) and (d)(10) of this section.
(8)Controlling external corrosion through cathodic protection
(i)If an annual test station reading indicates cathodic protection below the level of protection required in subpart I of this part, complete remedial action within six months of the failed reading; and
(ii)After remedial action to address a failed reading, confirm restoration of adequate corrosion control by a close interval survey on either side of the affected test station to the next test station.
(9)Conducting a baseline assessment of integrity
(i)Except as provided in paragraph (d)(9)(iii) of this section, for a new segment, do a baseline internal inspection as follows:
(A)Assess using a geometry tool after the initial hydrostatic test and backfill within six months after placing the new segment in service; and
(B)Assess using a high resolution magnetic flux tool within three years after placing the new segment in service.
(ii)Except as provided in paragraph (d)(9)(iii) of this section, for an existing segment, do a baseline internal assessment using a geometry tool and a high resolution magnetic flux tool before, but within two years prior to, raising pressure as allowed under this section.
(iii)If headers, mainline valve by-passes, compressor station piping, meter station piping, or other short portion of a segment cannot accommodate a geometry tool and a high resolution magnetic flux tool, use direct assessment to assess that portion.
(10)Conducting periodic assessments of integrity
(i)Determine a frequency for subsequent periodic inspections as if the segments were covered by subpart O of this part.
(ii)Conduct periodic internal inspections using a high resolution magnetic flux tool on the frequency determined under paragraph (d)(10)(i) of this section.
(iii)Use direct assessment for periodic assessment of a portion of a segment to the extent permitted for a baseline assessment under paragraph (d)(9)(iii) of this section.
(11)Making repairs
(i)Do the following when evaluating an anomaly:
(A)Use the most conservative calculation for determining remaining strength or an alternative validated calculation based on pipe diameter, wall thickness, grade, operating pressure, operating stress level, and operating temperature: and
(B)Take into account the tolerances of the tools used for the inspection.
(ii)Repair a defect immediately if any of the following apply:
(A)The defect is a dent discovered during the baseline assessment for integrity under paragraph (d)(9) of this section and the defect meets the criteria for immediate repair in § 192.309(b).
(B)The defect meets the criteria for immediate repair in § 192.933(d).
(C)The maximum allowable operating pressure was based on a design factor of 0.67 under paragraph
(a)of this section and the failure pressure is less than 1.25 times the maximum allowable operating pressure.
(D)The maximum allowable operating pressure was based on a design factor of 0.56 under paragraph
(a)of this section and the failure pressure is less than or equal to 1.4 times the maximum allowable operating pressure.
(iii)If paragraph (d)(11)(ii) of this section does not require immediate repair, repair a defect within one year if any of the following apply:
(A)The defect meets the criteria for repair within one year in § 192.933(d).
(B)The maximum allowable operating pressure was based on a design factor of 0.80 under paragraph
(a)of this section and the failure pressure is less than 1.25 times the maximum allowable operating pressure.
(C)The maximum allowable operating pressure was based on a design factor of 0.67 under paragraph
(a)of this section and the failure pressure is less than 1.50 times the maximum allowable operating pressure.
(D)The maximum allowable operating pressure was based on a design factor of 0.56 under paragraph
(a)of this section and the failure pressure is less than or equal to 1.80 times the maximum allowable operating pressure.
(iv)Evaluate any defect not required to be repaired under paragraph (d)(11)(ii) or
(iii)of this section to determine its growth rate, set the maximum interval for repair or re-inspection, and repair or re-inspect within that interval.
(e)*Is there any change in overpressure protection associated with operating at the alternative maximum allowable operating pressure?* Notwithstanding the required capacity of pressure relieving and limiting stations otherwise required by § 192.201, if an operator establishes a maximum allowable operating pressure for a segment in accordance with paragraph
(a)of this section, an operator must:
(1)Provide overpressure protection that limits mainline pressure to a maximum of 104 percent of the maximum allowable operating pressure; and
(2)Develop and follow a procedure for establishing and maintaining accurate set points for the supervisory control and data acquisition system. Issued in Washington, DC, on March 4, 2008. Jeffrey D. Wiese, Associate Administrator for Pipeline Safety. [FR Doc. E8-4656 Filed 3-11-08; 8:45 am] BILLING CODE 4910-60-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 080229343-8368-01] RIN 0648-XF87 Listing Endangered and Threatened Species: Notification of Finding on a Petition to List Pacific Eulachon as an Endangered or Threatened Species under the Endangered Species Act AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notification of finding; request for information, and initiation of status review. SUMMARY: On November 8, 2007, we, NMFS, received a petition to list populations of Pacific eulachon ( *Thaleichthys pacificus* ) in Washington, Oregon, and California as a threatened or endangered species under the Endangered Species Act (ESA). We find that the petition presents substantial scientific and commercial information indicating that the petitioned action may be warranted. Accordingly, we will initiate a status review of the species. To ensure that the status review is complete and based upon the best available scientific and commercial information, we solicit information regarding the population structure and status of Pacific eulachon throughout their range in Alaska, British Columbia, Washington, Oregon, and California. DATES: Information and comments on the subject action must be received by May 12, 2008. ADDRESSES: You may submit data, information, comments, identified by the code 0648-XF87, addressed to: Chief, NMFS, Protected Resources Division, by any of the following methods: • Electronic Submissions: Submit all electronic comments via the Federal eRulemaking Portal at *http://www.regulations.gov* • Facsimile (fax): 503-230-5441 • Mail: 1201 NE Lloyd Boulevard, Suite 1100, Portland, Oregon, 97232. • Hand delivery: You may hand-deliver written comments to our office during normal business hours at the street address given above. Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All personally identifiable information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word or Excel, Corel WordPerfect, or Adobe pdf file formats only. FOR FURTHER INFORMATION CONTACT: For further information regarding this notice contact Garth Griffin, NMFS, Northwest Region,
(503)231-2005; John Clancy, Southwest Region,
(707)825-5175; or Dwayne Meadows, NMFS, Office of Protected Resources,
(301)713-1401. SUPPLEMENTARY INFORMATION: Background On November 08, 2007, NMFS received a petition from the Cowlitz Indian Tribe to list southern eulachon (populations in Washington, Oregon, and California) as a threatened or endangered species under the ESA. Copies of the petition are available from NMFS via the Internet ( *http://www.nwr.noaa.gov/Other-Marine-Species/index.cfm* ) or by request (See ADDRESSES section, above). ESA Statutory, Regulatory, and Policy Provisions Section 4(b)(3) of the ESA contains provisions concerning petitions from interested persons requesting the Secretary of Commerce (Secretary) to list species under the Endangered Species Act
(ESA)(16 U.S.C. 1533(b)(3)(A)). Section 4(b)(3)(A) requires that, to the maximum extent practicable, within 90 days after receiving such a petition, the Secretary make a finding whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Joint NOAA-U.S. Fish and Wildlife Service (USFWS) ESA implementing regulations define Asubstantial information@ as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted (50 CFR 424.14(b)(1)). In evaluating a petitioned action, the Secretary considers whether the petition contains a detailed narrative justification for the recommended measure, including: past and present numbers and distribution of the species involved, and any threats faced by the species (50 CFR 424.14(b)(2)(ii)); and information regarding the status of the species throughout all or a significant portion of its range (50 CFR 424.14(b)(2)(iii)). In addition to the information presented in a petition, we review other data and publications readily available to our scientists (i.e., currently within agency files). When it is found that substantial information is presented in the petition, we are required to promptly commence a review of the status of the species concerned. Within 1 year of receipt of the petition, we shall issue one of the following findings:
(1)the petitioned action is not warranted;
(2)the petitioned action is warranted, in which case we must promptly publish a propped listing determination; or
(3)the petitioned action is warranted but that a proposed listing is precluded by pending rulemaking for other species. Under the ESA, a listing determination may address a species, subspecies, or a distinct population segment
(DPS)of any vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)). A joint NOAA-USFWS policy clarifies the agencies' interpretation of the phrase “distinct population segment” of any species of vertebrate fish or wildlife (ESA section 3(16)) for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722, February 7, 1996) (joint DPS policy). The joint DPS policy established two criteria that must be met for a population or group of populations to be considered a DPS:
(1)the population segment must be discrete in relation to the remainder of the species (or subspecies) to which it belongs; and
(2)the population segment must be significant to the remainder of the species (or subspecies) to which it belongs. A population segment may be considered discrete if it satisfies either one of the following conditions:
(1)it is markedly separated from other populations of the same biological taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or
(2)it is delimited by international governmental boundaries across which differences exist in exploitation control, habitat management, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA. If a population is determined to be discrete, the agency must then consider whether it is significant to the taxon to which it belongs. Considerations in evaluating the significance of a discrete population include:
(1)persistence of the discrete population in an unusual or unique ecological setting for the taxon;
(2)evidence that the loss of the discrete population segment would result in a significant gap in the taxon's range;
(3)evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere outside its historical geographic range; or
(4)evidence that the discrete population has marked genetic differences from other populations of the species. A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, or “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA Sections 3(6) and 3(20), respectively). Under section 4(a)(1) of the ESA, a species can be determined to be threatened or endangered based on any of the following factors:
(1)the present or threatened destruction, modification, or curtailment of a species' habitat or range;
(2)overutilization for commercial, recreational, scientific, or educational purposes;
(3)disease or predation;
(4)inadequacy of existing regulatory mechanisms; or
(5)other natural or manmade factors affecting the species' continuing existence. Listing determinations are based solely on the best available scientific and commercial data after taking into account any efforts being made by any state or foreign nation to protect the species (16 U.S.C. 1533(b)(1)(A)). Distribution and Life History of Eulachon Eulachon (commonly called smelt, candlefish, or hooligan) are endemic to the eastern Pacific Ocean ranging from northern California to southwest Alaska and into the southeastern Bering Sea. Eulachon typically spend 3-5 years in saltwater before returning to freshwater to spawn from late winter through mid spring. Spawning grounds are typically in the lower reaches of larger snowmelt-fed rivers (Hay and McCarter, 2000). In the portion of the species' range that lies south of the U.S. Canada border, most eulachon production originates in the Columbia River Basin. Other river basins in the U.S. where eulachon have been documented include: the Sacramento River, Russian River, Humboldt Bay and several nearby smaller coastal rivers (e.g., Mad River), and the Klamath River in California; the Rogue River and Umpqua Rivers in Oregon; and infrequently in coastal rivers and tributaries to Puget Sound in Washington (Emmett *et al.* , 1991; Musick *et al.* , 2000). Within the Columbia River Basin, the major and most consistent spawning runs occur in the mainstem of the Columbia River (from just upstream of the estuary, river mile
(RM)25, to immediately downstream of Bonneville Dam, RM 146) and in the Cowlitz River. Periodic spawning also occurs in the Grays, Skamokawa, Elochoman, Kalama, Lewis, and Sandy rivers (tributaries to the Columbia River)(Emmett *et al.* , 1991; Musick *et al.* , 2000). Throughout the species' range, spawning occurs consistently in the Klamath River, Columbia and Cowlitz Rivers, and the Fraser and Nass rivers (British Columbia), and may occur rarely or intermittently in other coastal river systems from California to Alaska (Wilson *et al.* , 2004). Spawning occurs in the lower sections of rivers at temperatures from 4 to 10 degrees C (Washington, 2001). Spawning occurs over sand or coarse gravel substrates. Eggs are fertilized in the water column, sink, and adhere to the river bottom typically in areas of gravel and coarse sand. Most eulachon adults die after spawning. Eulachon eggs hatch in 20-40 days. The larvae are carried downstream and are dispersed by estuarine and ocean currents shortly after hatching. Juvenile eulachon move from shallow nearshore areas to mid-depth midshore areas. Typically eulachon spend 3-5 years in saltwater before returning to freshwater to spawn. 1999 Eulachon Petition In 1999, Mr. Sam Wright petitioned us under the ESA to add Columbia River eulachon to the list of federally threatened and endangered species. Mr. Wright expressed concern regarding marked declines in eulachon populations in the Columbia River system, and concluded that Columbia River eulachon populations were at risk of extinction and had no reasonable expectation of recovering or being replenished by nearby populations. After reviewing the petition, as well as other information readily available to us, we concluded that the petition provided insufficient information regarding the distinctness of eulachon populations in the Columbia River relative to the other populations in the species' range. In November 1999 we issued our finding that the petition did not present substantial scientific information indicating the petitioned action may be warranted (64 FR 66601; November 29, 1999), and, therefore, no status review was conducted. We acknowledged there was cause for concern over decline in the eulachon catch in the Columbia River to an historical low. We noted, however, that the species' high fecundity and short life span contribute to highly variable and possibly cyclic run size, and it was therefore unclear whether the low catch levels at the time of the petition reflected natural variability in response to variable ocean conditions or an actual decline in stock status. Although we decided that a status review was not warranted, we encouraged state and tribal co-managers to improve their eulachon management and research efforts. In particular, we underscored the need to evaluate whether current harvest strategies adequately protect the species and to initiate more accurate eulachon abundance and life-history surveys. Analysis of the Cowlitz Indian Tribe's Petition We reviewed the petition from the Cowlitz Indian Tribe, as well as other information readily available to our scientists (i.e., currently within our files), to determine if the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Specifically, we evaluated whether:
(1)the species may warrant delineation into one or more DPSs; and
(2)the species, or a putative DPS, may be in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. Information Regarding the DPS Structure of Eulachon The Cowlitz Indian Tribe's petition seeks delineation of a southern eulachon DPS extending from the U.S.-Canada border south to include populations in Washington, Oregon, and California. The petitioner concludes that the available genetic, meristic, and life-history information is inconclusive regarding the discreteness of eulachon populations. However, the petitioner argues that under the DPS policy eulachon populations in Washington, Oregon, and California are collectively “discrete” from more northerly populations because they are delimited by an international governmental boundary (i.e., the U.S.-Canada border between Washington and British Columbia) across which there is a significant difference in exploitation control, habitat management, or conservation status. The petitioner notes that the U.S. and Canada differ in their regulatory control of commercial, recreational and tribal eulachon harvest, and also differ in their management of eulachon habitat. The petitioner concluded that there is no assurance that the U.S. and Canada will coordinate management and regulatory efforts sufficiently to conserve eulachon and their habitat, and thus the DPS should be delineated at the border between Washington and British Columbia. The petitioner argues that the southern eulachon population segment is also “significant” under the DPS policy because the loss of the discrete population segment would cause a significant gap in the taxon's range. The petitioner notes that eulachon have largely disappeared in rivers throughout the southern portion of their range, and that eulachon in the Columbia River probably represent the southernmost extant population for the species. The loss of the Columbia River eulachon population and any dependent coastal spawning populations could represent the loss of the species throughout its range in the U.S., as well as the loss of a substantial proportion of its historical range. Although the petitioner felt that the available information is inconclusive, it was noted that eulachon may be composed of several smaller DPSs differentiable on the basis of differences in run timing, meristic, and genetic characteristics. Initial mitochondrial DNA genetic information (McLean *et al.* , 1999) and elemental analysis of eulachon otoliths (Carolsfeld and Hay, 1998) suggested that eulachon did not exhibit genetic discreteness and represented a panmictic population throughout the species' range. Other biological data including the number of vertebrae, size at maturity, fecundity, river-specific spawning times, and population dynamics indicate that there is substantial local stock structure (Hart and McHugh, 1944; Hay and McCarter, 2000). These latter observations are consistent with the hypothesis that there is local adaptation and genetic differentiation among populations. Recent microsatellite genetic work (Beacham *et al.* , 2005) appears to confirm the existence of significant differentiation among populations. Although the Fraser River, Columbia River mainstem, and the Cowlitz River spawning populations are genetically distinct from each other, they are more closely related to one another than to the more northerly British Columbia populations (Beacham *et al.* , 2005). After reviewing the information presented in the petition as well as other information readily available to us (i.e., currently within NMFS files), we conclude that the Cowlitz Indian Tribe's petition presents substantial scientific information indicating that eulachon may warrant delineation into one or more DPSs. Information Regarding Eulachon Status and Threats Although eulachon abundance exhibits considerable year-to-year variability, nearly all spawning runs from California to southeastern Alaska have declined in the past 20 years, especially since the mid 1990s (Hay and McCarter, 2000). Historically, the Columbia River has exhibited the largest returns of any spawning population throughout the species' range. The petitioner notes that from 1938 to 1992, the median commercial catch of eulachon in the Columbia River was approximately 1.9 million pounds (861,826 kg). From 1993 to 2006, the median catch had declined to approximately 43,000 pounds, representing a 97.7 percent reduction in catch from the prior period. Although there was an increasing trend in Columbia River eulachon catch from 2000-2003, recent catches are extremely low. The preliminary catch data for the 2008 Columbia River eulachon run suggest it may be the second lowest on record (i.e., since 1938) (WDFW, 2008). The petitioner also presents catch per unit effort and larval survey data (WDFW and ODFW, 2006) for the Columbia River and tributaries in Oregon and Washington that similarly reflect the depressed status of Columbia River eulachon during the 1990s, a relative increase during 2000 to 2004, and a decline back to low levels in recent years. The petitioner also notes that eulachon returns in the Fraser River and other British Columbia rivers similarly suffered severe declines in the mid-1990s and, despite increased returns during 2001 to 2003, presently remain at very low levels (DFO, 2006). Egg and larval surveys conducted in the Fraser River since 1995 also demonstrate that, despite the implementation of fishing restrictions in British Columbia, the stock has not recovered from its mid-1990s collapse and remains at a very low level. An offshore index of Fraser and Columbia River eulachon biomass, calculated from eulachon bycatch in the shrimp trawl fishery off the west coast of Vancouver Island, illustrates highly variable biomass over the time series since 1973, but also reflects stock declines in the mid-1990s and in recent years (DFO, 2006). With respect to eulachon populations further south in the species' range, the petitioner notes that populations in the Klamath River, Mad River, Redwood Creek, and Sacramento River are likely extirpated or nearly so. The petitioner describes a number of threats facing eulachon range-wide, and facing populations in U.S. rivers in particular. The petitioner organizes this information according to the five factors described in section 4(a)(1) of the ESA:
(A)the present or threatened destruction, modification, or curtailment of its habitat or range;
(B)overutilization for commercial, recreational, scientific, or educational purposes;
(C)disease or predation;
(D)the inadequacy of existing regulatory mechanisms; or
(E)other natural or manmade factors affecting its continued existence. The following paragraph provides a brief summary of the information on threats presented in the petition. The petitioner expresses concern that habitat loss and degradation threaten eulachon, particularly in the Columbia River basin. Hydroelctric dams block access to historical eulachon spawning grounds, and affect the quality of spawning substrates through flow management, altered delivery of coarse sediments, and siltation. The petitioner expressed strong concern regarding the siltation of spawning substrates in the Cowlitz River due to altered flow management and the accumulation of fine sediments from the Toutle River. The petitioner believes that efforts to retain and stabilize fine sediments generated by the 1980 eruption of Mount St. Helens are inadequate. The petitioner notes that the release of fine sediments from behind a U.S. Army Corps of Engineers sediment retention structure on the Toutle River has been negatively correlated with Cowlitz River eulachon returns 3 to 4 years later. The petitioner also expressed concern that dredging activities in the Cowlitz and Columbia rivers during the eulachon spawning run may entrain and kill fish, or otherwise result in decreased spawning success. The petitioner also noted that eulachon have been shown to carry high levels of chemical pollutants (US EPA, 2002), and although it has not been demonstrated that high contaminant loads in eulachon result in increased mortality or reduced reproductive success, such effects have been shown in other fish species (Kime, 1995). The petitioner expressed concern that depressed eulachon populations are particularly susceptible to overharvest in fisheries where they are targeted or taken as bycatch. The petitioner concluded that no evidence suggests that disease currently poses a threat to eulachon, but noted information presented in the 1999 petition to list eulachon that suggested that predation by pinnipeds may be substantial. The petitioner acknowledges that eulachon harvest has been curtailed significantly in response to population declines, and that were it not for continued low levels of harvest there would be little or no status information available for some populations. However, the petitioner concludes that existing regulatory mechanisms have proven inadequate in recovering eulachon stocks, and that directed harvest and bycatch may be important factors limiting the recovery of impacted stocks. The petitioner underscores the need for further fishery-independent monitoring and research. Finally, the petitioner concludes that global climate change is one of the greatest threats facing eulachon, particularly in the southern portion of its range where ocean warming trends may be the most pronounced. The petitioner felt that the risks facing southerly eulachon populations in Washington, Oregon, and California will be exacerbated by such a deterioration of marine conditions. These southerly populations, already exhibiting dramatic declines and impacted by other threats (e.g., habitat loss and degradation), might be at risk of extirpation if unfavorable marine conditions predominated in the future. The petitioner noted that the Columbia River served as the single refuge for the species during the Wisconsinan glacial period (between 10,000 and 15,000 years before present), and that the loss of the Columbia River and other southerly eulachon populations would imperil the persistence of the taxon as a whole. Petition Finding After reviewing the information contained in the petition and other information readily available in our files, we determine that the petition presents substantial scientific and commercial information indicating the petitioned action may be warranted. In accordance with section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(2)), we will commence a review of the status of the species concerned and make a determination within 12 months of receiving the petition (i.e., by November 8, 2008) whether the petitioned action is warranted. Information Solicited DPS Structure and Extinction Risk To ensure that the updated status review is complete and based on the best available and most recent scientific and commercial data, we solicit information, and comments (see DATES and ADDRESSES ) concerning the status of eulachon. We solicit pertinent information such as:
(1)biological or other relevant data pertinent to determining the DPS structure of eulachon (e.g., age structure, genetics, migratory patterns, morphology, physiology);
(2)the abundance and biomass, as well as the spatial and temporal distribution of eulachon;
(3)trends in abundance and distribution;
(4)natural and human-influenced factors that cause variability in survival, distribution, and abundance; and
(5)current or planned activities and their possible impact on eulachon (e.g., harvest measures and habitat actions). Efforts Being Made to Protect Eulachon Section 4(b)(1)(A) of the ESA requires the Secretary to make listing determinations solely on the basis of the best scientific and commercial data available after conducting a review of the status of a species and after taking into account efforts being made to protect the species. Therefore, in making its listing determinations, we first assess the status of the species and identify factors that have led to the decline. We then assesses conservation measures to determine whether they ameliorate a species' extinction risk (50 CFR 424.11(f)). In judging the efficacy of conservation efforts, NMFS considers the following: the substantive, protective, and conservation elements of such efforts; the degree of certainty that such efforts will reliably be implemented and the degree of certainty that such efforts will be effective in furthering the conservation of the species (68 FR 15100, March 28, 2003); and the presence of monitoring provisions that track the effectiveness of recovery efforts, and that inform iterative refinements to management as information is accrued. In some cases, conservation efforts may be relatively new or may not have had sufficient time to demonstrate their biological benefit. In such cases, provisions of adequate monitoring and funding for conservation efforts are essential to ensure that the intended conservation benefits are realized. We also encourage all parties to submit information on ongoing efforts to protect and conserve eulachon, as well as information on recently implemented or planned activities and their likely impact(s). References Copies of the petition and related materials are available on the Internet at *http://www.nwr.noaa.gov/Other-Marine-Species/index.cfm* , or upon request (see ADDRESSES section above). Authority: 16 U.S.C. 1531 *et seq.* Dated: March 6, 2008. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E8-4957 Filed 3-11-08; 8:45 am] BILLING CODE 3510-22-S 73 49 Wednesday, March 12, 2008 Notices DEPARTMENT OF AGRICULTURE Notice of Funding Availability
(NOFA)for Section 514 Farm Labor Housing Loans and Section 516 Farm Labor Housing Grants for Off-Farm Housing for Fiscal Year 2008 AGENCY: Rural Housing Service, USDA. ACTION: Notice. *Announcement Type:* Initial NOFA inviting pre-applications from qualified applicants for Fiscal Year 2008. *Catalog of Federal Domestic Assistance Numbers (CFDA):* 10.405 and 10.427. SUMMARY: This NOFA announces the timeframe to submit pre-applications for section 514 Farm Labor Housing
(FLH)loans and section 516 FLH grants for the construction of new off-farm FLH units and related facilities for domestic farm laborers. The intended purpose of these loans and grants is to increase the number of available housing units for domestic farm laborers. Applications may also include requests for section 521 rental assistance
(RA)and operating assistance for migrant units. This document describes the method used to distribute funds, the application process, and submission requirements. DATES: The deadline for receipt of all applications in response to this NOFA is 5 p.m., local time for each Rural Development State Office on May 12, 2008. The application closing deadline is firm as to date and hour. The Agency will not consider any application that is received after the closing deadline. Applicants intending to mail applications must provide sufficient time to permit delivery on or before the closing deadline. Acceptance by a post office or private mailer does not constitute delivery. Facsimile (FAX), COD, and postage due applications will not be accepted. Submission Address FOR FURTHER INFORMATION CONTACT: Henry Searcy, Senior Loan Specialist, Multi-Family Housing Processing Division, STOP 0781 (Room 1263-S), USDA Rural Development, 1400 Independence Ave., SW., Washington, DC 20250-0781, telephone:
(202)720-1753 (This is not a toll free number.), or e-mail: *Henry.Searcy@wdc.usda.gov* . Applicants wishing to apply for assistance must contact the Rural Development State Office serving the place in which they desire to submit an application for off-farm labor housing to receive further information and copies of the application package. Rural Development will date and time stamp incoming applications to evidence timely receipt, and, upon request, will provide the applicant with a written acknowledgment of receipt. A listing of Rural Development State Offices, their addresses, telephone numbers, and person to contact follows: Note: Telephone numbers listed are not toll-free. Alabama State Office Suite 601, Sterling Center 4121 Carmichael Road, Montgomery, AL 36106-3683,
(334)279-3455 TDD
(334)279-3618, Van McCloud. Alaska State Office 800 West Evergreen, Suite 201, Palmer, AK 99645,
(907)761-7740 TDD
(907)761-8905, Debbie Andrys. Arizona State Office Phoenix Courthouse and Federal Building, 230 North First Ave., Suite 206, Phoenix, AZ 85003-1706,
(602)280-8768 TDD
(602)280-8770, Carol Torres. Arkansas State Office 700 W. Capitol Ave., Rm. 3416, Little Rock, AR 72201-3225,
(501)301-3250 TDD
(501)301-3063, Clinton King. California State Office 430 G Street, #4169, Davis, CA 95616-4169,
(530)792-5830 TDD
(530)792-5848, Stephen Nnodim. Colorado State Office 655 Parfet Street, Room El00, Lakewood, CO 80215,
(720)544-2923 TDD
(800)659-2656, Mary Summerfield. Connecticut Served by Massachusetts State Office. Delaware State Office 1221 College Park Drive, Suite 200, Dover, DE 19904,
(302)857-3615 TDD
(302)857-3585, Pat Baker. Florida & Virgin Islands State Office 4440 N.W. 25th Place, Gainesville, FL 32606-6563,
(352)338-3465 TDD
(352)338-3499, Elizabeth M. Whitaker. Georgia State Office Stephens Federal Building, 355 E. Hancock Avenue, Athens, GA 30601-2768,
(706)546-2164 TDD
(706)546-2034, Wayne Rogers. Hawaii State Office (Services all Hawaii, American Samoa, Guam and Western Pacific). Room 311, Federal Building, 154 Waianuenue Avenue, Hilo, HI 96720,
(808)933-8305 TDD
(808)933-8321, Thao Khamoui. Idaho State Office Suite A1, 9173 West Barnes Dr., Boise, ID 83709,
(208)378-5630 TDD
(208)378-5644, Miriam Haylett. Illinois State Office 2118 W. Park Court, Suite A, Champaign, IL 61821-2986,
(217)403-6222 TDD
(217)403-6240, Barry L. Ramsey. Indiana State Office 5975 Lakeside Boulevard, Indianapolis, IN 46278,
(317)290-3100 (ext. 423) TDD
(317)290-3343, Stephen Dye. Iowa State Office 210 Walnut Street, Room 873, Des Moines, IA 50309,
(515)284-4685 TDD
(515)284-4858, Julie Sleeper. Kansas State Office 1303 SW First American Place, Suite 100, Topeka, KS 66604-4040,
(785)271-2721 TDD
(785)271-2767, Virginia M. Hammersmith. Kentucky State Office 771 Corporate Drive, Suite 200, Lexington, KY 40503,
(859)224-7325 TDD
(859)224-7422, Paul Higgins. Louisiana State Office 3727 Government Street, Alexandria, LA 71302,
(318)473-7962 TDD
(318)473-7655, Yvonne R. Emerson. Maine State Office 967 Illinois Ave., Suite 4, PO Box 405, Bangor, ME 04402-0405,
(207)990-9110 TDD
(207)942-7331, Bob Nadeau. Maryland Served by Delaware State Office. Massachusetts State Office 451 West Street, Amherst, MA 01002,
(413)253-4315 TDD
(413)253-4590, Paul Geoffroy. Michigan State Office 3001 Coolidge Road, Suite 200, East Lansing, MI 48823,
(517)324-5192 TDD
(517)337-6795, Ghulam R. Sumbal. Minnesota State Office 375 Jackson Street Building, Suite 410, St. Paul, MN 55101,
(651)602-7820 TDD
(651)602-7826, Rodney Jackson. Mississippi State Office Federal Building, Suite 831, 100 W. Capitol Street, Jackson, MS 39269,
(601)965-4325 TDD
(601)965-5850, Darnella Smith-Murray. Missouri State Office 601 Business Loop 70 West, Parkade Center, Suite 235, Columbia, MO 65203,
(573)876-9305 TDD
(573)876-9480, Colleen James. Montana State Office 900 Technology Blvd., Suite B, Bozeman, MT 59715,
(406)585-2565 TDD
(406)585-2562, Deborah Chorlton. Nebraska State Office Federal Building, Room 152, 100 Centennial Mall N, Lincoln, NE 68508,
(402)437-5734 TDD
(402)437-5093, Linda Anders. Nevada State Office 1390 South Curry Street, Carson City, NV 89703-9910,
(775)887-1222 (ext. 25) TDD
(775)885-0633, Angilla Denton. New Hampshire State Office Concord Center, Suite 218, Box 317, 10 Ferry Street, Concord, NH 03301-5004,
(603)223-6050 TDD
(603)229-0536, Robert McCarthy. New Jersey State Office 5th Floor North, Suite 500, 8000 Midlantic Dr., Mt. Laurel, NJ 08054,
(856)787-7740 TDD
(856)787-7784, George Hyatt, Jr. New Mexico State Office 6200 Jefferson St., NE, Room 255, Albuquerque, NM 87109,
(505)761-4944 TDD
(505)761-4938, Carmen N. Lopez. New York State Office The Galleries of Syracuse, 441 S. Salina Street, Suite 357, Syracuse, NY 13202,
(315)477-6419 TDD
(315)477-6447, George N. Von Pless. North Carolina State Office 4405 Bland Road, Suite 2120, Raleigh, NC 27120,
(919)873-2066 TDD
(919)873-2003, Beverly Casey. North Dakota State Office Federal Building, Room 208, 220 East Rosser, P.O. Box 1737, Bismarck, ND 58502,
(701)530-2049 TDD
(701)530-2113, Kathy Lake. Ohio State Office Federal Building, Room 507, 200 North High Street, Columbus, OH 43215-2477,
(614)255-2418 TDD
(614)255-2554, Melodie Taylor-Ward. Oklahoma State Office 100 USDA, Suite 108, Stillwater, OK 74074-2654,
(405)742-1070 TDD
(405)742-1007, Ivan Graves. Oregon State Office 101 SW Main, Suite 1410, Portland, OR 97204-3222,
(503)414-3325 TDD
(503)414-3387, Sherryl Gleason. Pennsylvania State Office One Credit Union Place, Suite 330, Harrisburg, PA 17110-2996,
(717)237-2282 TDD
(717)237-2261, Martha E. Hanson. Puerto Rico State Office IBM Building, 654 Munoz Rivera Ave., Suite 601, San Juan, PR 00918,
(787)766-5095 (ext. 254) TDD 1-800-274-1572, Lourdes Colon. Rhode Island Served by Massachusetts State Office. South Carolina State Office Strom Thurmond Federal Building, 1835 Assembly Street, Room 1007, Columbia, SC 29201,
(803)253-3432 TDD
(803)765-5697, Larry D. Floyd. South Dakota State Office Federal Building, Room 210, 200 Fourth Street, SW, Huron, SD 57350,
(605)352-1132 TDD
(605)352-1147, Roger Hazuka or Pam Reilly. Tennessee State Office 3322 West End Avenue, Suite 300, Nashville, TN 37203-1084,
(615)783-1375 TDD
(615)783-1397, Donald Harris. Texas State Office 101 South Main St., Suite 102, Temple, TX 76501,
(254)742-9758 TDD
(254)742-9712, Julie Hayes. Utah State Office Wallace F. Bennett Federal Building, 125 S. State Street, Room 4311, Salt Lake City, UT 84138,
(801)524-4325 TDD
(801)524-3309, Janice Kocher. Vermont State Office City Center, 3rd Floor, 89 Main Street, Montpelier, VT 05602,
(802)828-6021 TDD
(802)223-6365, Heidi Setien. Virgin Islands Served by Florida State Office. Virginia State Office Culpeper Building, Suite 238, 1606 Santa Rosa Road, Richmond, VA 23229,
(804)287-1596 TDD
(804)287-1753, CJ Michels. Washington State Office 1835 Black Lake Blvd., Suite B, Olympia, WA 98512,
(360)704-7730 TDD
(360)704-7760, Robert Lund. Western Pacific Territories Served by Hawaii State Office. West Virginia State Office 75 High Street, Room 320, Morgantown, WV 26505-7500,
(304)284-4872 TDD
(304)284-4836, David Cain. Wisconsin State Office 4949 Kirschling Court, Stevens Point, WI 54481,
(715)345-7608 (ext. 7145) TDD
(715)345-7614, Peter Kohnen. Wyoming State Office P.O. Box 11005, Casper, WY 82602-6733,
(307)233-6715 TDD
(307)233-6733, Jack Hyde. SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The reporting requirements contained in this NOFA have been approved by the Office of Management and Budget under Control Number 0575-0045. Overview The FLH program is authorized by the Housing Act of 1949 as amended: section 514 (42 U.S.C. 1484) for loans and section 516 (42 U.S.C. 1486) for grants. Tenant subsidies
(RA)are available through section 521 (42 U.S.C. 1490a). Sections 514 and 516 provide Rural Development the authority to make loans and grants for financing off-farm housing to broad-based nonprofit organizations, nonprofit organizations of farmworkers, federally recognized Indian tribes and agencies or political subdivisions of State or local government. In addition, loans may be made to limited partnerships in which the general partner is a nonprofit entity. Program Administration I. Funding Opportunities Description Housing that is constructed with FLH loans and grants must meet the Agency design and construction standards contained in 7 CFR part 1924, subparts A and C. Once constructed, off-farm FLH must be managed in accordance with the program's management regulation, 7 CFR part 3560. Tenant eligibility is limited to persons who meet the definition of a “domestic farm laborer”, a “retired domestic farm laborer,” or a “disabled domestic farm laborer,” as these terms are defined in 7 CFR 3560.11. Farmworkers who are admitted to this country on a temporary basis under the Temporary Agricultural Workers (H-2A Visa) program are not eligible to occupy section 514/516 off-farm FLH. In addition, off-farm FLH must be operated on a non-profit basis and tenancy must be open to all qualified domestic farm laborers, regardless of which farm they work. Operating assistance may be used in lieu of tenant-specific rental assistance in off-farm labor housing projects that serve migrant farmworkers, are financed under section 514 or section 516(i) of the Housing Act of 1949 (U.S.C. 1486(i)), and otherwise meet the requirements of 7 CFR 3560.574. “Migrants or migrant agricultural laborer” is defined in 7 CFR 3560.11. Owners of eligible projects may choose tenant-specific RA or operating assistance, or a combination of both; however, any tenant or unit assisted with operating assistance may not also receive RA. II. Award Information Applications for Fiscal Year
(FY)2008 will only be accepted through the date and time listed in this NOFA. Because USDA Rural Development has the ability to adjust loan and grant levels, final loan and grant levels will fluctuate, and are subject to the availability of funding. The estimated funds available for FY 2008 for off-farm housing are: section 514, $19,158,807 and section 516, $7,447,500. Individual requests may not exceed $3 million (total loan and grant). At this time there is no available new construction Rental Assistance available, however if there is Rental Assistance available an announcement will be made when the funding level is announced. Section 516 off-farm FLH grants may not exceed 90 percent of the total development cost of the housing. Applications that require leveraged funding must have firm commitments in place for all of the leveraged funding within 1 year of the issuance of a “Notice of Pre-application Review Action,” Form AD-622. In order to be eligible for leveraged funding selection points, the commitment for the initial preapplication. If leverage funds are in the form of tax credits, the applicant must document a history of receiving tax credits. III. Eligibility Information Applicant Eligibility
(1)*To be eligible to receive a section 516 grant for off-farm FLH* , the applicant must be a broad-based nonprofit organization, a broad-based organization, a nonprofit organization of farm workers, a federally recognized Indian tribe, an agency or political subdivision of a State or local government, or a public agency (such as a housing authority).
(2)*To be eligible to receive a section 514 loan for off-farm FLH* , the applicant must be a broad-based nonprofit organization, faith-based organization, a nonprofit organization of farm workers, a federally recognized Indian tribe, an agency or political subdivision of a State or local government, a public agency (such as a housing authority), or a limited partnership which has a nonprofit entity as its general partner, and
(a)Be unable to provide the necessary housing from its own resources; and
(b)Except for State or local public agencies and Indian tribes, be unable to obtain similar credit elsewhere at rates that would allow for rents within the payment ability of eligible residents.
(3)Broad-based nonprofit organizations must have a membership that reflects a variety of interests in the area where the housing will be located. Cost Sharing or Matching Section 516 grants for off-farm FLH may not exceed the lesser of 90 percent of the total development cost or the amount provided in 7 CFR 3560.562(c)(2). Other Administrative Requirements The following policies and regulations apply to loans and grants made in response to this NOFA:
(1)The policies and regulations contained in 7 CFR part 1901, subpart E regarding equal opportunity requirements;
(2)The requirements of 7 CFR part 3015 and 7 CFR part 3016 or 7 CFR part 3019 (as applicable), which establish the uniform administrative requirements for grants and cooperative agreements to State and local governments and to nonprofit organizations;
(3)The policies and regulations contained in 7 CFR part 1901, subpart F regarding historical and archaeological properties;
(4)The policies and regulations contained in 7 CFR part 1940, subpart G regarding environmental assessments;
(5)The policies and regulations contained in 7 CFR part 3560, subpart L regarding the loan and grant authorities of the off-farm FLH program;
(6)The policies and regulations contained in 7 CFR part 1924, subpart A regarding planning and construction;
(7)The policies and regulations contained in 7 CFR part 1924, subpart C regarding the planning and performing of site development work; and
(8)All other policies and regulations contained in 7 CFR part 3560 regarding the section 514/516 off-farm FLH program. IV. Application and Submission Information The application process will be in two phases: The initial pre-application (or proposal) and the submission of a formal application. Only those proposals that are selected for funding will be invited to submit formal applications. In the event that a proposal is selected for further processing and the applicant declines, the next highest ranked unfunded pre-application may be selected. All pre-applications for sections 514 and 516 funds must be filed with the appropriate Rural Development State Office and must meet the requirements of this NOFA. Incomplete pre-applications will not be reviewed and will be returned to the applicant. No pre-application will be accepted after 5 p.m., local time for each Rural Development State Office on May 12, 2008 unless date and time is extended by another NOFA published in the **Federal Register** . If a pre-application is accepted for further processing, the applicant must submit a complete, formal application, acceptable to the agency prior to the obligation of Agency funds. Pre-application Requirements The pre-application must contain the following:
(1)A summary page listing the following items. This information should be double-spaced between items and not be in narrative form.
(a)Applicant's name.
(b)Applicant's Taxpayer Identification Number.
(c)Applicant's address.
(d)Applicant's telephone number.
(e)Name of applicant's contact person, telephone number, and address.
(f)Amount of loan and grant requested.
(g)For grants, the applicant's Dun and Bradstreet Data Universal Numbering System
(DUNS)number. As required by the Office of Management and Budget (OMB), all grant applicants must provide a DUNS number when applying for Federal grants, on or after October 1, 2003. Organizations can receive a DUNS number at no cost by calling the dedicated toll-free DUNS Number request line at 1-866-705-5711. Additional information concerning this requirement is provided in a policy directive issued by OMB and published in the **Federal Register** on June 27, 2003 (68 FR 38402-38405).
(2)A narrative addressing the applicant's ability to meet the eligibility requirements stated in this NOFA.
(3)Application for Federal Assistance (Standard Form 424) which can be found at grants.gov.
(4)A current, dated, and signed financial statement showing assets and liabilities with information on the repayment schedule and status of all debts.
(5)Evidence that the applicant is unable to obtain credit from other sources. Letters from credit institutions who normally provide real estate loans in the area should be obtained and these letters should indicate the rates and terms upon which a loan might be provided. ( **Note:** Not required from State or local public agencies or Indian tribes.)
(6)A statement concerning the need for a labor housing grant. The statement should include preliminary estimates of the rents required with and without a grant.
(7)A statement of the applicant's experience in operating labor housing or other rental housing. If the applicant's experience is limited, additional information should be provided to indicate how the applicant plans to compensate for this limited experience (i.e., obtaining assistance and advice of a management firm, non-profit group, public agency, or other organization which is experienced in rental management and will be available on a continuous basis).
(8)A brief statement explaining the applicant's proposed method of operation and management (i.e., on-site manager, contracting for management services, etc.). As stated in this NOFA:
(a)The housing must be managed in accordance with the program's management regulation, 7 CFR part 3560, and
(b)Tenancy is limited to “domestic farm laborers,” “retired domestic farm laborers,” and “disabled domestic farm laborers” as defined in this NOFA.
(9)Applicants must provide:
(a)A copy of, or an accurate citation to, the special provisions of State law under which they are organized, a copy of the applicant's charter, their Articles of Incorporation, and their By-laws;
(b)The names, occupations, and addresses of the applicant's members, directors, and officers; and
(c)If a member or subsidiary of another organization, the organization's name, address, and nature of business.
(10)A preliminary survey to identify the supply and demand for labor housing in the market area. The market area must be clearly identified and may include only the area from which tenants can reasonably be drawn for the proposed project. Documentation must be provided to justify a need within the intended market area for housing for “domestic farm laborers”, as defined in this NOFA. The preliminary survey should address or include the following items:
(a)The annual income level of farmworker families in the area and the probable income of the farm workers who are apt to occupy the proposed housing;
(b)A realistic estimate of the number of farm workers who are home-based in the area and the number of farm workers who normally migrate into the area. Information on migratory workers should indicate the average number of months the migrants reside in the area and an indication of what type of family groups are represented by the migrants (i.e., single individuals as opposed to families);
(c)General information concerning the type of labor intensive crops grown in the area and prospects for continued demand for farm laborers (i.e., prospects for mechanization, etc.);
(d)The overall occupancy rate for comparable rental units in the area and the rents charged and customary rental practices for these units (i.e., will they rent to large families, do they require annual leases, etc.);
(e)The number, condition, adequacy, rental rates and ownership of units currently used or available to farm workers;
(f)A description of the units proposed, including the number, type, size, rental rates, amenities such as carpets and drapes, related facilities such as a laundry room or community room and other facilities providing supportive services in connection with the housing and the needs of the prospective tenants such as a health clinic or day care facility, estimated development timeline, estimated total development cost, and applicant contribution; and
(g)The applicant must also identify all other sources of funds, including the dollar amount, source, and commitment status. ( **Note:** A section 516 grant may not exceed 90 percent of the total development cost of the housing.)
(11)A completed Form RD 1940-20, “Request for Environmental Information,” and a description of anticipated environmental issues or concerns. The form can be found at *http://www.rurdev.usda.gov/regs/forms/1940-20.pdf* .
(12)A prepared HUD 935.2A, “Affirmative Fair Housing Marketing Plan.” The plan will reflect that occupancy is open to all qualified “domestic farm laborers,” regardless of which farming operation they work and that they will not discriminate on the basis of race, color, sex, age, disability, marital or familial status or National origin in regard to the occupancy or use of the units. The form can be found at *http://www.hud.gov/offices/admm/hudclips/form/files/935a.pdf.*
(13)Evidence of site control such as an option or sales contract. In addition, a map and description of the proposed site, including the availability of water, sewer, and utilities and the proximity to community facilities and services such as shopping, schools, transportation, doctors, dentists, and hospitals.
(14)Preliminary plans and specifications, including plot plans, building layouts, and type of construction and materials. The housing must meet the Agency's design and construction standards contained in 7 CFR part 1924, subparts A and C and must also meet all applicable Federal, State, and local accessibility standards.
(15)A Supportive Services Plan describing services that will be provided on-site or made available to tenants through cooperative agreements with service providers in the community, such as a health clinic or day care facility. Off-site services must be accessible and affordable to farm workers and their families. Letters of intent from service providers are acceptable documentation at the pre-application stage.
(16)A proposed operating budget utilizing Form RD 3560-7, “Multiple Family Housing Project Budget/Utility Allowance.” The form can be found at *www.rurdev.usda.gov/regs/forms/3560-07.pdf* .
(17)An estimate of development cost utilizing Form RD 1924-13, “Estimate and Certificate of Actual Cost.” The form can be found at *http://www.rurdev.usda.gov/regs/forms/1924-13.pdf* .
(18)Form RD 3560-30, “Certification of No Identity of Interest (IOI)” and Form RD 3560-31, “Identity of Interest Disclosure/Qualification Certification.” The form can be found at *http://www.rurdev.usda.gov/regs/form/stoc.html.*
(19)Form HUD 2530, “Previous Participation Certification.” The form can be found at *http://www.hud.gov/offices/adm/hudclips/forms/files/2530.pdf.*
(20)If requesting RA or Operating Assistance, Form RD 3560-25, “Initial Request for Rental Assistance or Operating Assistance.” The form can be found at *http://www.rurdev.usda.gov/regs/forms/3560-25.pdf* .
(21)A Sources and Uses Statement showing all sources of funding included in the proposed project. The terms and schedules of all sources included in the project should be included in the Sources and Uses Statement.
(22)A separate one-page information sheet listing each of the “Application Scoring Criteria” contained in this NOFA, followed by the page numbers of all relevant material and documentation that is contained in the proposal that supports the criteria.
(23)Applicants are encouraged, but not required, to include a checklist of all of the application requirements and to have their application indexed and tabbed to facilitate the review process;
(24)Form, RD 400-4,”Assurance Agreement”. V. Application Review Information All applications for sections 514 and 516 funds must be filed with the appropriate Rural Development State Office and must meet the requirements of this NOFA. The Rural Development State Office will base its determination of completeness of the application and the eligibility of each applicant on the information provided in the application. Selection Criteria Section 514 loan funds and section 516 grant funds will be distributed to States based on a national competition, as follows:
(1)Rural Development States will accept, review, and score requests in accordance with the NOFA. The scoring factors are:
(a)The presence and extent of leveraged assistance, including donated land, for the units that will serve program-eligible tenants, calculated as a percentage of the Rural Development total development cost (TDC). Rural Development TDC excludes non-Rural Development eligible costs such as a developer's fee. Leveraged assistance includes, but is not limited to, funds for hard construction costs, section 8 or other non-rural development tenant subsidies, and state or federal funds. A minimum of ten percent leveraged assistance is required to earn points; however, if the total percentage of leveraged assistance is less than ten percent and the proposal includes donated land, two points will be awarded for the donated land. To count as leveraged funds for purposes of the selection criteria, a commitment of funds must be provided with the pre-application. Points will be awarded in accordance with the following table. Percentage Points 75 or more 20 60-74 18 50-59 16 40-49 12 30-39 10 20-29 8 10-19 5 0-9 0 *Donated land in proposals with less than ten percent total leveraged assistance:* 2 points.
(b)Percent of units for seasonal, temporary, migrant housing. (5 points for up to and including 50 percent of the units; 10 points for 51 percent or more.)
(c)The selection criteria includes one optional criteria set by the National Office. The National Office initiative will be used in the selection criteria as follows: Up to 10 points will be awarded based on the presence of and extent to which a tenant services plan exists that clearly outlines services that will be provided to the residents of the proposed project. These services may include, but are not limited to, transportation related services, on-site English as a Second Language
(ESL)classes, move-in funds, emergency assistance funds, homeownership counseling, food pantries, after school tutoring, and computer learning centers. Two points will be awarded for each resident service included in the tenant services plan up to a maximum of 10 points. Plans must detail how the services are to be administered, who will administer them, and where they will be administered. All tenant service plans must include letters of intent that clearly state the service that will be provided at the project for the benefit of the residents from any party administering each service, including the applicant. (0 to 10 points)
(d)In an effort to implement USDA's nationwide initiative to promote renewable energy and energy conservation, Rural Development has adopted incentives for energy generation and energy conservation. Participation in these nationwide initiatives is voluntary, but is strongly encouraged. Participation in the energy generation and energy conservation will be awarded with 5 points each. *Energy Generation.* Applicants will be awarded points if the proposal includes the installation of energy generation systems to be funded by a third party. The proposal must include an overview of the energy generation system being proposed. Evidence that an energy generation system has been funded by a third party and that it has a quantifiable positive impact on energy consumption will be required. (5 points) *Energy Conservation.* Applicants will be awarded points to construct (or substantially rehabilitate) housing that earns the ENERGY STAR label for new residential construction. Units earning the ENERGY STAR label must be independently verified to meet guidelines for energy efficiency as set by the U.S. Environmental Protection Agency. All procedures used in verifying a unit for the ENERGY STAR label must comply with National Home Energy Ratings System
(HERS)guidelines. ENERGY STAR guidelines for residential construction apply to homes that are three stories or less and single or low-rise multi-family residential buildings. The Applicant will include in the narrative an explanation of how they plan to incorporate ENERGY STAR. Construction plans pertaining to energy efficiency must be developed with, reviewed, and accepted by a HERS certified rater, the contractor, and the owner. Progress inspections must be made at appropriate times by a HERS certified rater to ensure that the housing is being constructed or rehabilitated according to ENERGY STAR specifications. In order to receive final payment, applicants will be required to submit the appropriate rating reports from the HERS rater to Rural Development as evidence that the housing has been constructed to meet the standards of ENERGY STAR. For further information about ENERGY STAR, see *http://www.energystar.gov* or call the toll-free numbers:
(888)782-7937 or
(888)588-9920 (TTY). (5 points)
(2)Rural Development State Offices will conduct the preliminary eligibility review, score the applications, and forward them to the National Office.
(3)The National Office will rank all requests nationwide and distribute funds to States in rank order, within funding and RA limits. A lottery in accordance with 7 CFR 3560.56(c)(2) will be used for applications with tied point scores when they all cannot be funded. If insufficient funds or RA remain for the next ranked proposal, that applicant will be given a chance to modify their application to bring it within remaining funding levels. This will be repeated for each next ranked eligible proposal until an award can be made or the list is exhausted. To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call
(800)795-3272 (voice) or
(202)720-6382 (TDD). USDA is an equal opportunity provider, employer, and lender. The U.S. Department of Agriculture
(USDA)prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at
(202)720-2600 (voice and TDD). Dated: March 5, 2008. Peter D. Morgan, Acting Administrator, Rural Housing Service. [FR Doc. E8-4956 Filed 3-11-08; 8:45 am] BILLING CODE 3410-XV-P DEPARTMENT OF AGRICULTURE Rural Housing Service Notice of Funding Availability: Section 514, 515, and 516 Multi-Family Housing Revitalization Demonstration Program
(MPR)for Fiscal Year 2008 AGENCY: Rural Housing Service, USDA. ACTION: Notice. *Announcement Type:* Inviting applications from eligible applicants for Fiscal Year 2008 funding. *Catalog of Federal Domestic Assistance Number (CFDA):* 10.447. SUMMARY: USDA Rural Development which administers the programs of the Rural Housing Service
(RHS)announces the availability of funds and the timeframe to submit applications to participate in a demonstration program to preserve and revitalize existing rural rental housing projects financed by Rural Development under Section 515, Section 514, and Section 516 of the Housing Act of 1949, as amended. The intended effect is to restructure selected existing Section 515 multi-family housing loans and Section 514 and 516 off-farm labor housing loans and grants expressly for the purpose of ensuring that sufficient resources are available to preserve the rental project for the purpose of providing safe and affordable housing for very low-, low-, or moderate-income residents. Expectations are that properties participating in this program will be revitalized and the affordable use extended without displacing tenants because of increased rents. No additional Rural Development rental assistance units will be made available under this program. DATES: The deadline for receipt of all pre-applications in response to this Notice of Funding Availability
(NOFA)is 5 p.m., Eastern time, May 12, 2008. The pre-application closing deadline is firm as to date and hour. The Agency will not consider any pre-application that is received after the closing deadline. Applicants intending to mail pre-applications must allow sufficient time to permit delivery on or before the closing deadline. Acceptance by a post office or private mailer does not constitute delivery. Facsimile
(FAX)and postage-due pre-applications will not be accepted. FOR FURTHER INFORMATION CONTACT: Sherry Engel, *sherry.engel@wi.usda.gov*
(715)345-7677; Carlton Jarratt, *carlton.jarratt@usda.gov,*
(804)561-0665; Barbara Chism, *barbara.chism@usda.gov,*
(202)690-1436; or Sandra Mercier, *sandra.mercier@usda.gov,*
(202)720-1617, Senior Loan Specialists, Multi-Family Housing Office of Rental Housing Preservation, STOP 0782, (Room 1263-S), U.S. Department of Agriculture, Rural Housing Service, 1400 Independence Avenue, SW., Washington, DC 20250-0782. (Please note these telephone numbers are not toll-free numbers.) SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The information collection requirements contained in this Notice have received approval from the Office of Management and Budget
(OMB)under Control Number 0570-0190. Overview The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2008 (Pub. L. 110-161), December 26, 2007, provides funding for and authorizes Rural Development to conduct a demonstration program for the preservation and revitalization of the Section 515 multi-family housing portfolio and Section 514 and 516 off-farm labor housing portfolio. Sections 514, 515 and 516 multi-family housing programs are authorized by the Housing Act of 1949, as amended (42 U.S.C. 1484, 1485, 1486) and provide Rural Development with the authority to make loans for low-income multi-family housing and farm labor housing and related facilities. Program Administration I. Funding Opportunities Description This NOFA solicits pre-applications from eligible borrowers/applicants to restructure existing multi-family housing within the Agency's Section 515 multi-family housing portfolio and the 514/516 off-farm labor housing portfolio for the purpose of revitalization and preservation. The demonstration program shall be referred to in this notice as the Multi-Family Housing Revitalization Demonstration program (MPR). Agency regulations for the Section 515 multi-family housing program and for the Sections 514/516 off farm labor housing program are published at 7 CFR part 3560. The MPR is intended to assure that existing rental projects will continue to deliver decent, safe, and sanitary affordable rental housing for the lesser of the remaining term of the loan or 20 years from the date of the MPR transaction closing. Once an applicant has been confirmed eligible and the project has been selected by the Agency in the process described in this notice, and the applicant agrees to participate in the MPR demonstration by written notification to the Agency, an independent third-party capital needs assessment
(CNA)will be conducted to provide a fair and objective review of projected capital needs. The Agency shall implement this NOFA through an MPR Conditional Commitment (MPRCC) with the eligible borrower, which will include all the terms and conditions under this NOFA, including the MPR Debt Deferral Agreement. The primary restructuring tool to be used in this program is debt deferral up to 20 years of the existing Section 514 and 515 loans obligated prior to October 1, 1991. The cash flow from the deferred payment will be deposited, as directed by the Agency, to the reserve account to help meet the future physical needs of the property or to reduce rents. Debt deferral is described as follows: *Debt Deferral:* A deferral of the existing Agency debt for the lesser of the remaining term of the loan or 20 years. All terms and conditions of the deferral will be described in the MPR Debt Deferral Agreement. A balloon payment of principal and accrued interest will be due at the end of the deferral period. Interest will accrue at the promissory note rate and subsidy will be applied as set out in the Agency's Interest Credit Agreement. Interest will not be charged on the deferred interest. If the resulting cash flow is not adequate to address the long-term needs of the project, the Agency may use the following sources of funds:
(1)other Agency restructuring tools as follows:
(i)*MPR Revitalization Grant:* A revitalization grant (for non-profit applicants/borrowers only) is limited to the cost of correcting health and safety violations as identified by the CNA. The grant administration will be in accordance with applicable provisions of 7 CFR parts 3015 and 3019.
(ii)*MPR Revitalization Zero Percent Loan:* A revitalization loan at zero percent interest that will be amortized over 30 years.
(iii)*MPR Soft-Second Loan:* A loan with a one percent interest rate that will have its accrued interest and principal deferred, to a balloon payment, due at the time the latest maturing Section 514 or Section 515 loan becomes due. MPR funds cannot be used to add new units, community rooms, playgrounds, and/or laundry rooms. However, other funding sources as outlined below in
(2)through
(6)can be used either for revitalization or for improvements listed above to the projects.
(2)Rural Development Section 515 Rehabilitation loan funds;
(3)Rural Development Section 514/516 rehabilitation loan and grant funds;
(4)Rural Development Section 538 Guaranteed Rural Rental Housing Program financing;
(5)Rural Development Multi-Family Housing Re-lending Demonstration Program Funds;
(6)Third-party funds in the form of loans with below market rates (below the AFR), grants, tax credits, and tax exempt financing; and
(7)Owner-provided capital contributions in the form of a cash infusion. Transfers, subordinations, and consolidations may be approved as part of a MPR transaction in accordance with existing servicing authorities of the Agency as available in 7 CFR part 3560. If a transfer is part of the MPR transaction, the transfer must meet the requirements of 7 CFR part 3560.406 before underwriting of the MPR transaction. *For the purposes of the MPR, the restructuring transactions will be identified in three categories:*
(1)Simple transactions involve no change in ownership.
(2)Complex transactions will consist of a property transfer to new ownership processed in accordance with 7 CFR 3560.406, or transactions requiring a subordination agreement as a result of third party funds.
(3)Portfolio Sale transactions that are defined as multiple project sale transactions with a common purchaser all within one state closed no earlier than September 30, 2007. Each transactional category may utilize any or all restructuring tools. Restructuring tools that may be available to address capital needs during the MPR demonstration are based on the capital needs assessment process and the underwriting feasibility determination. While all non-deferred Agency debt, either in first lien position or a subordinated lien position must be secured within market value, deferred debt may exceed the market value of the security. Payment of such deferred debt will not be required from normal project operation income, but from excess cash from project operations and the value of the property after all other secured debts are satisfied.
(1)*Pre-application:* Applicants must submit a pre-application described in Section VI. This pre-application process is designed to lessen the cost burden on all applicants including those who may not be eligible or whose proposals may not be feasible.
(2)*Eligible Properties:* Using criteria described below in Section III, USDA will conduct an initial screening for eligibility. As described in Section VIII, USDA will conduct additional eligibility screening later in the selection process.
(3)*Scoring and Ranking:* All eligible, complete and timely-filed pre-applications will be scored, ranked and put in funding categories as discussed in Sections VI and VII.
(4)*Formal Applications:* Top ranked pre-applicants will be invited to submit a formal application. As discussed in Section VIII paragraph
(2)of this notice, USDA will require the owner to provide a capital needs assessment in order to determine the proper combination of tools to be offered to the applicant, to perform additional eligibility review, and to underwrite the proposal to determine financial feasibility. Where proposals are found to be ineligible or financially infeasible, owners will be informed and proposals lower in the funding categories will be considered.
(5)*Financial Feasibility:* Using the results of the CNA to help identify the need for resources and applicant provided information regarding anticipated or available third-party financing, the Agency will determine the financial feasibility of each potential transaction, using restructuring tools available either through existing regulatory authorities or specifically authorized through this demonstration program. Project financial feasibility is determined when a property can provide affordable, safe, decent, and sanitary housing for 20 years or the remaining term of any Agency loan whichever ends later, by using the authorities of this program while minimizing the cost to the Agency, and without increasing rents for tenants and farm laborers, except when necessary to meet normal and necessary operating expenses. If the transaction is determined financially feasible by the Agency, the borrower will be offered a restructuring proposal, which will include the requirement that the borrower will execute, for recordation, a restrictive use covenant for a period of 20 years, the remaining term of any loans, or the remaining term of any existing restrictive-use provisions, whichever ends later. The restructuring proposal will be established in the form of the MPR Conditional Commitment (MPRCC). *MPR Agreements:* If the offer is accepted by the applicant, the Agency and applicant will enter into a MPRCC. The applicant must also agree to restrict the property use pursuant to Agency direction when the MPR transaction is closed. Any third-party lender will be required to subordinate to the Agency's restrictive use covenant unless the Agency determines on a case-by-case basis that the lender refuses to subordinate and such refusal will not compromise the purpose of the MPR. The Agency may also request that the applicant sign an agreement that would require the owner to escrow reserve, tax, and insurance payments in accordance with all pertinent current and future Agency regulations. *General Requirements:* The MPR transactions may be conducted with a stay-in owner (simple) or may involve a change in ownership (complex or portfolio sale). Any housing or related facilities that are constructed or repaired must meet the Agency design and construction standards and the development standards contained in 7 CFR part 1924, subparts A and C, respectively. Once constructed, Section 515 multi-family housing and Sections 514/516 off farm labor housing must be managed in accordance with 7 CFR part 3560. Tenant eligibility will be limited to persons who qualify as an eligible household under Agency regulations or who are eligible under the requirements established to qualify for housing benefits provided by sources other than the Agency, such as U.S. Department of Housing and Urban Development Section 8 assistance or Low Income Housing Tax Credit Assistance. Additional tenant eligibility requirements are contained in 7 CFR 3560.152. Voluntary Community Market Rent Demonstration (available for Section 515 properties only): In conjunction with this demonstration, Rural Development also announces the opportunity for all successful Section 515 applicants to participate on a voluntary basis in a viability test of a 30 percent limitation on tenant rents, as proposed in Section 544(b)(7) of Saving America's Rural Housing Act of 2006, H.R. 5039, for post-restructured properties. Owners of properties in the Section 515 restructuring program may elect to participate in the “community market rent” demonstration which will allow an owner to set a rent above the approved basic rent for any unit not currently occupied by a tenant receiving Rural Development rental assistance. Eligible tenants for these units must have adjusted annual incomes sufficient to allow them to pay the community market rent using less than 30 percent of their adjusted income. Tenants would be allowed to occupy without paying overage, additional sums that would otherwise be required to bring their rent payment up to 30 percent of income. With Rural Development's consent, up to 50 percent of the difference between the basic rent and the new “community market rent” could be retained by the owner as an increased return. For example, if the basic rent is $350, the owner could create a community market rent at $410, and market the unit to tenants who could pay that rent at less than 30 percent of adjusted income. A percentage of the difference, $60 could be retained by the owner, as negotiated with Rural Development, up to $30. Prior to implementation of the community market rent demonstrations, Rural Development will issue guidance to successful applicants who have indicated an interest in participating in the demonstration providing further details with respect to the program. Stay in owners, existing borrowers that will retain their property, who contribute cash to fund any hard costs of construction to meet immediate needs identified by the CNA may receive a return on investment on those funds provided the Agency determines an increased return on investment is financially feasible, and it approves such a return in the revitalization plan presented to the borrower as an MPR offer. II. Award Information Public Law 110-161 makes funding available to the Secretary of Agriculture for Rural Development to provide the restructuring tools of the MPR demonstration. $19,860,000 in budget authority will be available during FY 2008. All funding must be approved no later than September 15, 2008, and obligated by the Agency not later than September 22, 2008. If funds available for the MPR are fully used before all pre-applications that have been determined eligible and selected under this NOFA are funded, the unfunded approved properties may receive priority for funding from the next fiscal year's resources available for multi-family housing revitalization if additional funds become available and the selected properties/owners meet any future eligibility criteria. III. Eligibility Information *Applicants (and the principals associated with each applicant) must meet the following requirements:*
(1)Eligibility under 7 CFR 3560.55; however, the requirements described in 7 CFR 3560.55(a)(5) pertaining to required borrower contributions and 7 CFR 3560.55(a)(6) pertaining to required contributions of initial operating capital are waived for all MPR proposals.
(2)For Section 515 multi-family housing projects an average physical vacancy rate over the twelve months preceding the filing of the pre-application of no more than 10 percent for projects of 16 units or more and 15 percent for projects under 16 units unless an exception applies under Section VI paragraph (1)(ii) of this notice. For Sections 514 and 516 off-farm labor housing projects, rather than an average physical vacancy rate as stated above, the property must have positive cash flow for the previous full three years of operation unless an exception applies under Section VI paragraph (1)(ii) of this Notice .
(3)Ownership of and ability to operate the facility after the transaction is completed. (In the event of a transfer, the proposed transferee with an executed purchase agreement or other evidence of site control will be the applicant.)
(4)A CNA and Agency financial evaluation must be conducted to ensure that utilization of the restructuring tools of the MPR program is financially feasible and necessary for the revitalization and preservation of the property for affordable housing. Eligibility for processing will be determined as of the date of the pre-application filing deadline. The Agency reserves the right to discontinue processing in the event that material changes in the applicant's status occurs any time after the initial determination. IV. Equal Opportunity and Nondiscrimination Requirements USDA is an equal opportunity provider, employer, and lender.
(1)Borrowers and applicants will comply with the provisions of 7 CFR 3560.2.
(2)All housing must meet the accessibility requirements found at 7 CFR 3560.60(d).
(3)All MPR participants must submit or have on file a valid Form RD 400-1, “Equal Opportunity Agreement” and Form RD 400-4, “Assurance Agreement.” The U. S. Department of Agriculture
(USDA)prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, sex, marital status, familial status, religion, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at
(202)720-2600 (Voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call
(800)795-3272 (Voice) or
(202)720-6382 (TDD). The policies and regulations contained in 7 CFR part 1901, subpart E, apply to this program. V. Authorities Available for MPR MPR tools will be used in accordance with 7 CFR part 3560 and its associated handbooks (available in any Rural Development office). The program will be administered within the resources available to the Agency through Public Law 110-161 for the preservation and revitalization of Sections 514/516 and Section 515 financed properties. In the event that provisions of 7 CFR part 3560 conflict with this demonstration program, the provisions of the MPR will take precedence. VI. Application and Submission Information
(1)The application submission and scoring process will be completed in two phases in order to avoid unnecessary effort and expense on the part of interested borrowers/applicants and to allow additional points for applicants that propose a transfer of a troubled project to an eligible owner. The first phase is the pre-application process. The applicant must submit a complete pre-application by the deadline date under the DATES section of this Notice. The applicant's submission will be classified as “complete” when a “pre-application” is received by multi-family housing staff for each MPR proposal the applicant wishes to be considered in the demonstration. In the event the MPR proposal involves a project consolidation it will be completed in accordance with 7 CFR 3560.410. One pre-application for the proposed consolidated project is required and must identify each project included in the consolidation. If the MPR proposal involves a portfolio sale, one pre-application for each project in the portfolio is required and each pre-application must identify each project to be purchased as part of the portfolio sale. The suggested form to be used for the pre-application is “MPR Pre-application” and is attached at the end of this Notice. An electronic version of this form may be found on the internet at *http://www.rurdev.usda.gov/rd/nofas/index.html.* In addition, a synopsis of this program and the pre-application's universal resource locator
(URL)will be listed by Catalog of Federal Domestic Assistance Number or by FedGrants Funding Opportunity Number at *http://www.grants.gov.* In order for the pre-application to be considered complete, all applicable information requested on the MPR Pre-application form must be provided *Additional information that must be provided with the pre-application, when applicable, includes: *
(i)A copy of a purchase agreement if a transfer is being considered.
(ii)A market survey if the projects' occupancy standards cited in Section III
(2)above are not met and there is an overwhelming market demand evidenced by waiting lists and a housing shortage confirmed by local housing agencies and realtors. The market survey must show a clear need and demand for the project once a restructuring transaction is completed. The results of the survey of existing or proposed rental or labor housing, including complex name, location, number of units, bedroom mix, family or elderly type, year built, rent charges must be provided as well as the existing vacancy rate of all available rental units in the community, their waiting lists and amenities, and the availability of rental assistance or other subsidies. For proposals where the applicant is requesting low-income housing tax credits (LIHTC), the number of LIHTC units and the maximum LIHTC incomes and rents by unit size must be provided. The Rural Development State Director will determine whether or not the proposal has market feasibility based on the data provided by the applicant. Any costs associated with the completion of the market survey will not be considered a project expense. Unless an exception under this section applies, the requirements stated in Section III, paragraph
(2)of this notice must be met. The second phase of the application process will be completed by the Agency based on Agency records and the pre-application information. All eligible, complete, and timely-filed pre-applications will then be scored and ranked based on points received during this two-phase application process. Further, the Agency will categorize each MPR proposal as being potentially Simple, Complex, or Portfolio Sale based on the information submitted on the pre-application and in accordance with the category description provided in Section I of this Notice.
(2)Pre-applications can be submitted either electronically or in hard copy. The Agency will record pre-applications received electronically by the actual date and time received in the Web site mail box. Hard copy pre-applications received on the deadline date will receive the close of business time of the day received as the receipt time. Assistance for filing electronic and hard copy pre-applications can be obtained from any Rural Development State Office. The pre-application is stored in the form of an Adobe Acrobat format and may be completed as a fillable form. The form contains a button labeled “Submit by E-mail.” Clicking on the button will result in an e-mail containing a completed pre-application being sent to the Office of Rental Housing Preservation in Washington, DC for consideration. If a purchase agreement or market survey is required, these additional documents are to be attached to the resulting e-mail prior to submission. Pre-application forms may be downloaded from the Agency's internet Web site *http://www.rurdev.usda.gov/rd/nofas/index.html* or obtained by contacting the State Office in the state the project is located. Hard copy pre-applications and additional materials can be mailed to the attention of Sandra L. Mercier or Barbara Chism, Senior Loan Specialists, Multi-Family Housing Office of Rental Housing Preservation-STOP 0782 (Room 1263-S), U. S. Department of Agriculture, Rural Housing Service, 1400 Independence Avenue, SW., Washington, DC 20250-0781. Note: All documents must be received on or before the pre-application closing deadline to be considered complete and timely filed. Pre-applications that do not include a Purchase Agreement for transfer proposals, and/or market surveys for projects that don't meet the occupancy standards of Section III paragraph
(2)of this notice, or if applicable, the requirements for the exception in Section VI paragraph (1)(ii) of this notice, will be considered incomplete and will be returned to the applicant with appeal rights if not submitted by the closing deadline. VII. Selection Process Pre-application ranking points will be based on information provided during the submission process and in Agency records. Points will be awarded as follows:
(1)*Contribution of other sources of funds.* Other funds are those discussed in the third paragraph, of Section I “Funding Opportunities Description” items
(2)through (6). Points awarded are to be based on documented written evidence that the funds are committed. The maximum points awarded for this criterion is 20 points. These points will be awarded in the following manner:
(i)Evidence of a commitment of at least $3,000 to $5,000 per unit per property from other sources—15 points, or
(ii)Evidence of a commitment greater than $5,000 per unit per property from other sources—20 points.
(2)*Owner contribution sufficient to pay transaction costs.* (These funds cannot be from project reserve or operating funds). Transaction costs are defined as those costs required to complete the transaction and include, but are not limited to, the CNA, legal and closing costs, appraisal costs and filing/recording fees. The minimum contribution required to receive these points is $5,000 per project and will be required to be deposited in the property reserve account prior to closing—5 points.
(3)*Age of project.* Since the age of the project and the date that the loan was made are directly related to physical needs, a maximum of 25 points will be awarded on the following criteria:
(i)Projects with initial operational dates prior to December 21, 1979—25 points.
(ii)Projects with initial operational dates on or after December 21, 1979, but before December 15, 1989—20 points.
(iii)Projects with initial operational dates on or after December 15, 1989, but before October 1, 1991—15 points. Note: For project consolidation or portfolio sale proposals, the project with the earliest operational date will be used.
(4)*Troubled project points.* The Agency may award up to 25 additional points to facilitate the transfer and revitalization of projects the Agency considers as troubled due to an act of nature or where physical and/or financial deterioration or management deficiencies exist. Projects with an Agency classification of “C” or “D” according to Handbook 2-3560, Chapter 9, Paragraph 9.7 (available at *http://www.rurdev.usda.gov/regs/hblist.html* ) will be considered troubled. Projects that are classified “B” and do not involve a transfer will also receive consideration. Points will be awarded in the following manner:
(i)For Stay-in Owners only: If the Agency servicing classification is B as a result of a workout plan approved by the Agency prior to January 1, 2008—25 points.
(ii)If the Agency servicing classification is C or D for 24 months or more—20 points.
(iii)If the Agency servicing classification is C or D for less than 24 months—15 points.
(5)*Prior Agency approvals.* In the interest of ensuring timely application processing and underwriting, the Agency will award up to 20 points for properties with CNAs already approved by the Agency. CNAs over 12 months old may not be used for MPR underwriting without an update approved by the Agency. Points will be awarded for:
(i)CNAs approved after October 1, 2006 and prior to October 1, 2007—10 points.
(ii)CNAs approved after October 1, 2007 but before April 1, 2008—20 points.
(6)*Energy generation.* Applicants will be awarded 5 points if the proposal includes the installation of energy generation systems to be funded by a third party. The proposal must include an overview of the energy generation system being proposed. Evidence that an energy generation system has been funded by a third party and that it has a quantifiable positive impact on energy consumption will be required.
(7)*Energy conservation.* Applicants will be awarded 5 points if the proposal includes rehabilitation that earns the ENERGY STAR label for residential construction. Units earning the ENERGY STAR label must be independently verified to meet guidelines for energy efficiency as set by the U.S. Environmental Protection Agency. All procedures used in verifying a unit for the ENERGY STAR label must comply with National Home Energy Ratings System
(HERS)guidelines. ENERGY STAR guidelines for residential construction apply to single or low-rise multi-family residential buildings.
(8)*Tenant service provision.* The Agency will award 5 points for applications that include new services provided by a non-profit organization, which may include a faith-based organization, or by a Government agency. Such services shall be provided at no cost to the project and shall be made available to all tenants. Examples of such services are transportation for the elderly, after-school day care services or after-school tutoring. For portfolio sales and project consolidations, the Agency will calculate the average score for each project within the sale or consolidation. The Agency will total the points awarded to each pre-application received within the timeframes of this Notice and rank each pre-application according to total score. If point totals are equal, the earliest time and date the pre-application was received by the Agency will determine the ranking. In the event pre-applications are still tied, they will be further ranked by giving priority to those properties with the earliest Rural Development operational date. Eligibility will then be confirmed on the 16 highest-scoring and complete pre-applications in each State. If one or more of the 16 highest-scoring pre-applications is determined ineligible, (i.e. the applicant is a borrower that is not in good standing with the Agency or has been debarred or suspended by the Agency, etc.) the next highest-scoring pre-application will be confirmed for eligibility. If one or more of the 16 highest-ranking pre-applications is a portfolio sale, then eligibility determinations will be conducted on all of the pre-applications associated with the portfolio sale. Should any of the pre-applications associated with the portfolio sale be determined ineligible, that pre-application will be dropped, but the overall eligibility of the portfolio sale will not be affected as long as the requirements in Section I “Funding Opportunities Description” are met. If one or more of the 16 highest-ranking pre-applications is a project consolidation, and one of the projects involved in the consolidation does not meet the occupancy standards cited in Section III(2), that project will be determined ineligible and eliminated from the proposed consolidation transaction. Once ranking has been established, the Agency will conduct a four-step process to select pre-applications for submission of formal applications. This process is needed to assure that the Agency can process the proposed transactions within available staffing resources, develop a representative sampling of revitalization transaction types, assure geographic distribution, and assure an adequate pipeline of transactions to use all available funding. *Step One:* The Agency will review the eligible pre-applications, identify pre-applications as either Simple, Complex, or Portfolio Sale and separate them by state. *Step Two:* The Agency will select, for further processing, the top-ranked portfolio sale transactions until a total of $150,000,000 in potential debt deferral is reached. Portfolio sale transactions will be limited to one per State and will count as 1 MPR transaction. *Step Three:* The highest ranked complex transactions in each state will be selected for further processing, not to exceed 2 per state. *Step Four:* Additional projects will be selected from the highest ranked eligible pre-applications involving simple transactions in that state until a total of 5 pre-applications for MPR transactions per state is reached. VIII. Processing for Selected Pre-applications Those proposals that are ranked and then selected for further processing will be invited to submit a formal application on SF 424 “Application for Federal Assistance.” Those pre-applications that are rejected by the Agency will be returned to the applicant and the applicant will be given appeal rights pursuant to 7 CFR part 11. Those proposals that are not selected due to low scores will be retained by the Agency unless they are withdrawn by the applicant. In the event that a pre-application is selected for further processing and the pre-applicant declines, the next highest ranked pre-application of the same transaction type in that state will be selected provided there is no change in the preliminary eligibility of the pre-applicant. If there are no other pre-applications of the same transaction type, then the next highest-ranked pre-application regardless of transaction type will be selected. Applications (SF 424s) can be obtained and completed online. An electronic version of this form may be found on the Internet at *http://forms.sc.egov.usda.gov/eforms/mainservlet* or a hard copy may be obtained by contacting the State Office in the state where the project is located and can be submitted either electronically or in hard copy. If a pre-application is accepted for further processing, the applicant will be expected to submit additional information needed to demonstrate eligibility and feasibility (such as a CNA), consistent with this NOFA and the appropriate sections of 7 CFR part 3560, prior to the issuance of a restructuring offer. Rural Development will work with pre-applicants selected for further processing in accordance with the following steps:
(1)Based on the feasibility of the type of transaction that will best suit the project and the availability of funds, further eligibility confirmation determinations will be conducted by the designated Multi-Family Housing Revitalization Coordinators assigned by each Rural Development State Director with the assistance of the Office of Rental Housing Preservation.
(2)If one is not already available to the Agency, a CNA will be required and conducted in accordance with the requirements of 7 CFR 3560.103(c), Handbook 3-3560, Chapter 7, “Guidance on the Capital Needs Assessment Process,” and the CNA Statement of Work together with any non-conflicting amendments (available in any Rural Development State Office.) A CNA is prepared by a qualified independent contractor and is obtained to determine needed repairs and any necessary adjustments to the reserve account for long-term project viability. While the requirements of the CNA are described in the materials referenced above, at a minimum, to be considered acceptable, a CNA must include:
(i)A physical inspection of the site, architectural features, common areas and all electrical and mechanical systems;
(ii)An inspection of a sample of dwelling units;
(iii)Identify repair or replacement needs;
(iv)Provide a cost estimate of the repair and replacement expenses; and
(v)Provide at least a 20-year analysis of the timing and funding for identified needs which includes reasonable assumptions regarding inflation. The cost of the CNA will be considered a part of the project expense and may be paid from the “project reserve” with prior approval of the Agency. The Agency approval for participation in this program will be contingent upon the Agency's final approval of the CNA and concurrence in the scope of work by the owner. The Agency, in its sole discretion, may choose to obtain a CNA, at its expense, if it determines that doing so is in the best interest of the Government.
(3)Underwriting will be conducted by the designated Multi-Family Housing Revitalization Coordinator assigned by each Rural Development State Director with the assistance of the Office of Rental Housing Preservation. The feasibility and structure of each revitalization proposal will be determined using this underwriting process and will include a determination of the restructuring tools that will minimize the cost to the Government consistent with the purposes of this NOFA. To help assure a balanced utilization of revitalization tools and the long-term economic viability of revitalized projects, the MPR underwriting guidelines include, but are not limited to the following:
(i)The maximum soft-second loan is limited to no more than $5,000 per unit,
(ii)The total assistance provided from a revitalization grant, revitalization zero percent loan, and/or revitalization soft-second loan is limited to $10,000 per unit,
(iii)The maximum Section 515 loan or Section 514/516 loan and grant is limited to no more than $20,000 per unit, and
(iv)Properties receiving tax credits are expected to have sufficient funding sources and generally will receive debt deferral only.
(4)Properties with more than 75 percent of the units receiving significant subsidy such as Rural Development rental assistance or HUD-funded subsidy will be supplemented with Section 514, 515 and 516 loans and grants before revitalization grants and revitalization soft-second loans are considered.
(5)MPR revitalization grants will be limited to $5,000 per unit.
(6)Any rent increases that may be necessary will not exceed 10 percent in any one year.
(7)The approved MPR transaction will include projected revenue sufficient to cover a 10 percent Operations and Maintenance increase in the second year after the transaction.
(8)Full return to owner will be budgeted pursuant to the Loan Agreement.
(9)Budgeted increases to reserve deposit will not exceed 3 percent per annum.
(10)The remaining reserve balance at the end of the 20-year analysis period should be at least 2.0 times the average annual needs, including inflation, over the 20-year analysis period. These guidelines have been developed based on experience in the FY 2005, FY 2006 and FY 2007 Demonstrations. The Agency believes that these guidelines will be appropriate for typical transactions. However, the Agency reserves the right to waive any of the guidelines if, in the Agency's judgment, doing so would further the objectives of the MPR and is in the best interest of the Government. The Agency expects that some of the transactions proposed by selected pre-applicants will prove to be infeasible. The applicant entity may be determined to be ineligible under Section III of this Notice. If a proposed transaction is determined infeasible or the applicant determined ineligible, the Agency will then select the next highest ranked project for processing regardless of transaction type. Each MPR offer will be approved by the Revitalization Review Committee chaired by the Deputy Administrator for Multi-Family Housing or an agency-authorized delegate. Approved MPR offers will be presented to applicants who will then have up to 15 calendar days to accept or reject the offer in writing. Offers will expire after 15 days. The Agency will replace expired applications by selecting the next highest ranked project. Closing of MPR offers will occur within 90 days of acceptance by the applicant unless extended by the Agency. IX. Funding Restrictions Applicants will be selected in accordance with selection criteria and the four-step process identified in Section VII of this Notice. Once selected to proceed, the Agency will provide additional guidance to the applicant and request information and documents necessary to complete the underwriting and review process. Since the character of each application may vary substantially depending on the type of transactions proposed, information requirements will be provided as appropriate. Complete project information must be submitted as soon as possible but in no case later than 45 days from the date of Agency notification of the applicant's selection for further processing or September 1, 2008, whichever occurs first. Failure to submit the required information in a timely manner may result in the Agency discontinuing the processing of the request. Funding under this NOFA will be obligated to selectees that finish the processing steps outlined above first within each of the 3 funding categories described in Section VII of this Notice and to result in a ratio as close as possible to 30 percent portfolio sale transactions, 50 percent complex transactions, and 20 percent simple transactions. X. Application Review A review committee will make recommendations for final decision regarding funding to the appropriate Rural Development State Director based on the selection criteria contained in this NOFA. XI. Appeal Process All adverse determinations regarding applicant eligibility and the awarding of points as a part of the selection process are appealable. Instructions on the appeal process will be provided at the time an applicant is notified of the adverse action. Dated: March 5, 2008. Peter D. Morgan, Acting Administrator, Rural Housing Service. BILLING CODE 3410-XV-P EN12MR08.000 EN12MR08.001 EN12MR08.002 [FR Doc. E8-4952 Filed 3-11-08; 8:45 am] BILLING CODE 3410-XV-C DEPARTMENT OF AGRICULTURE Rural Housing Service Notice of Funding Availability
(NOFA)for the Section 515 Rural Rental Housing Program for New Construction in Fiscal Year 2008 AGENCY: Rural Housing Service (RHS), USDA. ACTION: Notice. SUMMARY: This NOFA announces the timeframe to submit applications for Section 515 Rural Rental Housing
(RRH)loan funds, including applications for the nonprofit set-aside for eligible nonprofit entities, the set-aside for the most Underserved Counties and Colonias (Cranston-Gonzalez National Affordable Housing Act), and the set-aside for Empowerment Zones and Enterprise Communities (EZ/ECs) and Rural Economic Area Partnership
(REAP)zones, and a designated reserve for states with rental assistance programs. This document describes the methodology that will be used to distribute funds, the application process, submission requirements, and areas of special emphasis or consideration. DATES: The deadline for receipt of all applications in response to this NOFA is 5 p.m., local time for each USDA Rural Development State Office on May 12, 2008. The application closing deadline is firm as to date and hour. The Agency will not consider any application that is received after the closing deadline. Applicants intending to mail applications must provide sufficient time to permit delivery on or before the closing deadline date and time. Acceptance by the United States Postal Service or private mailer does not constitute delivery. Facsimile
(FAX)and postage due applications will not be accepted. ADDRESSES: Applicants wishing to apply for assistance must contact the USDA Rural Development State Office serving the place in which they desire to submit an application for rural rental housing to receive further information and copies of the application package. USDA Rural Development will date and time stamp incoming applications to evidence timely receipt, and, upon request, will provide the applicant with a written acknowledgment of receipt. A listing of USDA Rural Development State Offices, their addresses, telephone numbers, and person to contact follows: Note: Telephone numbers listed are not toll-free. Alabama State Office Suite 601, Sterling Centre, 4121 Carmichael Road, Montgomery, AL 36106-3683,
(334)279-3618, TDD
(334)279-3495, Van McCloud. Alaska State Office 800 West Evergreen, Suite 201, Palmer, AK 99645,
(907)761-7740, TDD
(907)761-8905, Debbie Andrys. Arizona State Office Phoenix Courthouse and Federal Building, 230 North First Ave., Suite 206, Phoenix, AZ 85003-1706,
(602)280-8768, TDD
(602)280-8706, Carol Torres. Arkansas State Office 700 W. Capitol Ave., Room 3416, Little Rock, AR 72201-3225,
(501)301-3250, TDD
(501)301-3063, Greg Kemper. California State Office 430 G Street, #4169, Davis, CA 95616-4169,
(530)792-5821, TDD
(530)792-5848, Debra Moretton. Colorado State Office 655 Parfet Street, Room E100, Lakewood, CO 80215,
(720)544-2923, TDD
(800)659-2656, Mary Summerfield. Connecticut Served by Massachusetts State Office. Delaware and Maryland State Office 1221 College Park Drive, Suite 200, Dover, DE 19904,
(302)857-3615, TDD
(302)857-3585, Pat Baker. Florida & Virgin Islands State Office 4440 N.W. 25th Place, Gainesville, FL 32606-6563,
(352)338-3465, TDD
(352)338-3499, Elizabeth M. Whitaker. Georgia State Office Stephens Federal Building, 355 E. Hancock Avenue, Athens, GA 30601-2768,
(706)546-2164, TDD
(706)546-2034, Wayne Rogers. Hawaii State Office (Services all Hawaii, American Samoa Guam, and Western Pacific), Room 311, Federal Building, 154 Waianuenue Avenue, Hilo, HI 96720,
(808)933-8305, TDD
(808)933-8321, Thao Khamoui. Idaho State Office Suite A1, 9173 West Barnes Dr., Boise, ID 83709,
(208)378-5630, TDD
(208)378-5644, Miriam Haylett. Illinois State Office 2118 West Park Court, Suite A, Champaign, IL 61821-2986,
(217)403-6222, TDD
(217)403-6240, Barry L. Ramsey. Indiana State Office 5975 Lakeside Boulevard, Indianapolis, IN 46278,
(317)290-3100 (ext. 423), TDD
(317)290-3343, Stephen Dye. Iowa State Office 210 Walnut Street, Room 873, Des Moines, IA 50309,
(515)284-4685, TDD
(515)284-4858, Julie Sleeper. Kansas State Office 1303 SW First American Place, Suite 100, Topeka, KS 66604-4040,
(785)271-2721, TDD
(785)271-2767, Virginia M. Hammersmith. Kentucky State Office 771 Corporate Drive, Suite 200, Lexington, KY 40503,
(859)224-7325, TDD
(859)224-7422, Paul Higgins. Louisiana State Office 3727 Government Street, Alexandria, LA 71302,
(318)473-7962, TDD
(318)473-7655, Yvonne R. Emerson. Maine State Office 967 Illinois Ave., Suite 4, PO Box 405, Bangor, ME 04402-0405,
(207)990-9110, TDD
(207)942-7331, Bob Nadeau. Maryland Served by Delaware State Office. Massachusetts, Connecticut, & Rhode Island State Office 451 West Street, Amherst, MA 01002,
(413)253-4315, TDD
(413)253-4590, Paul Geoffroy. Michigan State Office 3001 Coolidge Road, Suite 200, East Lansing, MI 48823,
(517)324-5192, TDD
(517)337-6795, Julie Putnam. Minnesota State Office 375 Jackson Street Building, Suite 410, St. Paul, MN 55101-1853,
(651)602-7820, TDD
(651)602-7830, Rodney Jackson. Mississippi State Office Federal Building, Suite 831, 100 W. Capitol Street, Jackson, MS 39269,
(601)965-4325, TDD
(601)965-5850, Darnella Smith-Murray. Missouri State Office 601 Business Loop 70 West, Parkade Center, Suite 235, Columbia, MO 65203,
(573)876-0990, TDD
(573)876-9480, Colleen James. Montana State Office 900 Technology Blvd., Suite B, Bozeman, MT 59718,
(406)585-2515, TDD
(406)585-2562, Deborah Chorlton. Nebraska State Office Federal Building, Room 152, 100 Centennial Mall N, Lincoln, NE 68508,
(402)437-5734, TDD
(402)437-5093, Linda Anders. Nevada State Office 1390 South Curry Street, Carson City, NV 89703-5146,
(775)887-1222 (ext. 25), TDD
(775)885-0633, Angilla Denton. New Hampshire State Office Concord Center, Suite 218, Box 317, 10 Ferry Street, Concord, NH 03301-5004,
(603)223-6050, TDD
(603)229-0536, Robert McCarthy. New Jersey State Office 5th Floor North Suite 500, 8000 Midlantic Dr., Mt. Laurel, NJ 08054,
(856)787-7740, TDD
(856)787-7784, George Hyatt, Jr. New Mexico State Office 6200 Jefferson St., NE, Room 255, Albuquerque, NM 87109,
(505)761-4944, TDD
(505)761-4938, Carmen N. Lopez. New York State Office The Galleries of Syracuse, 441 S. Salina Street, Suite 357, 5th Floor, Syracuse, NY 13202,
(315)477-6419, TDD
(315)477-6447, George N. Von Pless. North Carolina State Office 4405 Bland Road, Suite 260, Raleigh, NC 27609,
(919)873-2066, TDD
(919)873-2003, Beverly Casey. North Dakota State Office Federal Building, Room 208, 220 East Rosser, P.O. Box 1737, Bismarck, ND 58502,
(701)530-2049, TDD
(701)530-2113, Kathy Lake. Ohio State Office Federal Building, Room 507, 200 North High Street, Columbus, OH 43215-2477,
(614)255-2418, TDD
(614)255-2554, Melodie Taylor-Ward. Oklahoma State Office 100 USDA, Suite 108, Stillwater, OK 74074-2654,
(405)742-1070, TDD
(405)742-1007, Ivan S. Graves. Oregon State Office 1201 NE Lloyd Blv., Suite 801, Portland, OR 97232,
(503)414-3325, TDD
(503)414-3387, Sherryl Gleason. Pennsylvania State Office One Credit Union Place, Suite 330, Harrisburg, PA 17110-2996,
(717)237-2281, TDD
(717)237-2261, Martha Eberhart. Puerto Rico State Office 654 Munoz Rivera Avenue, IBM Plaza, Suite 601, Hato Rey, PR 00918,
(787)766-5095 (ext. 249), TDD
(787)766-5332, Lourdes Colon. Rhode Island Served by Massachusetts State Office. South Carolina State Office, Strom Thurmond Federal Building, 1835 Assembly Street, Room 1007, Columbia, SC 29201,
(803)253-3432, TDD
(803)765-5697, Larry D. Floyd. South Dakota State Office Federal Building, Room 210, 200 Fourth Street, SW, Huron, SD 57350,
(605)352-1132, TDD
(605)352-1147, Roger Hazuka or Pam Reilly. Tennessee State Office Suite 300, 3322 West End Avenue, Nashville, TN 37203-1084,
(615)783-1375, TDD
(615)783-1397, Don Harris. Texas State Office Federal Building, Suite 102, 101 South Main, Temple, TX 76501,
(254)742-9758, TDD
(254)742-9712, Julie Hayes. Utah State Office Wallace F. Bennett Federal Building, 125 S. State Street, Room 4311, Salt Lake City, UT, 84147-0350,
(801)524-4325, TDD
(801)524-3309, Janice Kocher. Vermont State Office City Center, 3rd Floor, 89 Main Street, Montpelier, VT 05602,
(802)828-6021, TDD
(802)223-6365, Heidi Setien. Virgin Islands Served by Florida State Office. Virginia State Office, Culpeper Building, Suite 238, 1606 Santa Rosa Road, Richmond, VA 23229,
(804)287-1596, TDD
(804)287-1753, CJ Michels. Washington State Office 1835 Black Lake Blvd., Suite B. Olympia, WA 98512,
(360)704-7730, TDD
(360)704-7760, Robert Lund. Western Pacific Territories Served by Hawaii State Office. West Virginia State Office, Federal Building, 75 High Street, Room 320, Morgantown, WV 26505-7500,
(304)284-4872, TDD
(304)284-4836. David Cain. Wisconsin State Office 4949 Kirschling Court, Stevens Point, WI 54481,
(715)345-7676, TDD
(715)345-7614, Mike Daniels. Wyoming State Office P.O. Box 11005, Casper, WY 82602,
(307)233-6715, TDD
(307)233-6733, Alan Brooks. FOR FURTHER INFORMATION CONTACT: For general information, applicants may contact Barbara Chism, Senior Loan Specialist, Multi-Family Housing Processing Division, Rural Housing Service, United States Department of Agriculture, Stop 0781, 1400 Independence Avenue, SW., Washington, DC 20250, telephone
(202)690-1436 (voice) (this is not a toll free number),
(800)877-8339 (TDD-Federal Information Relay Service), or via e-mail, *Barbara.Chism@wdc.usda.gov.* SUPPLEMENTARY INFORMATION: Programs Affected The Rural Rental Housing program is listed in the Catalog of Federal Domestic Assistance under Number 10.415, Rural Rental Housing Loans. Rental Assistance is listed in the Catalog under Number 10.427, Rural Rental Assistance Payments. Discussion of Notice I. Authority and Distribution Methodology A. Authority Section 515 of the Housing Act of 1949, as amended, (42 U.S.C. 1485) provides USDA Rural Development with the authority to make loans to any individual, corporation, association, trust, Indian tribe, public or private nonprofit organization, which may include a faith-based organization, consumer cooperative, or partnership to provide rental or cooperative housing and related facilities in rural areas for very-low, low, or moderate income persons or families, including elderly persons and persons with disabilities. Rental assistance
(RA)is a tenant subsidy for very-low and low-income families residing in rural rental housing facilities with USDA Rural Development financing. It is anticipated that RA will not be available for new construction in Fiscal Year
(FY)2008. B. Distribution Methodology The total amount available for FY 2008 for section 515 is $69,510,000, of which $14,529,124 is available for new construction as follows: Non-Restricted $2,341,200 Set-aside for nonprofits $6,255,900 Set-aside for Underserved Counties and Colonias $3,475,500 Set-aside EZ, EC, and REAP Zones $1,456,524 Designated Reserve for States with Rental Assistance Programs $1,000,000 C. Section 515 New Construction Funds The section 515 new construction funds will be distributed to states based on a national competition, as follows: 1. States will accept, review, score, and rank requests in accordance with 7 CFR 3560.56. The scoring factors are:
(a)The presence and extent of leveraged assistance for the units that will serve USDA Rural Development income-eligible tenants at basic rents as defined, comparable to those rents if USDA Rural Development provided full financing, computed as a percentage of the USDA Rural Development total development cost (TDC). Loan proposals that include secondary funds which have been requested but have not yet been committed will be processed as follows: The proposal will be scored based on the requested funds, provided
(1)the applicant includes evidence of a filed application for the funds; and
(2)the funding date of the requested funds will permit processing of the loan request in the current funding cycle, or, if the applicant does not receive the requested funds, will permit processing of the next highest ranked proposal in the current year. Points will be awarded in accordance with the following table. Percentages will be rounded to the next higher whole number. (0 to 20 points) Percentage of leveraging Points 75 or more 20 70-74 19 65-69 18 60-64 17 55-59 16 50-54 15 45-49 14 40-44 13 35-39 12 30-34 11 25-29 10 20-24 9 15-19 8 10-14 7 5-9 6 0-4 0
(b)The units to be developed are in a colonia, tribal land, EZ, EC, or Rural Economic Area Partnership
(REAP)community, or in a place identified in the State Consolidated Plan or State Needs Assessment as a high need community for multifamily housing. (20 points)
(c)Pursuant to 7 CFR 3560.56(c)(1)(iii), this year there will be a National Office initiative whereby preference points will be awarded to loan requests that meet the selection criteria as follows: In states where USDA Rural Development has an on-going formal working relationship, agreement, or Memorandum of Understanding
(MOU)with the state to provide state resources (state funds, state RA, HOME funds, Community Development Block Grant
(CDBG)funds, or Low-Income Housing Tax Credits (LIHTC)) for USDA Rural Development proposals; or where the state provides preference or points to USDA Rural Development proposals in awarding such state resources, 20 points will be provided to loan requests that include such state resources in an amount equal to at least 5 percent of the TDC. Native American Housing and Self-Determination Act (NAHASDA) funds may be considered a state resource if the tribal plan for NAHASDA funds contains provisions for partnering with USDA Rural Development for multi-family housing. (National Office initiative)
(d)The loan request includes donated land meeting the provisions of 7 CFR 3560.56(c)(1)(iv). (5 points)
(e)In an effort to implement USDA's nationwide initiative to promote renewable energy and energy conservation, USDA Rural Development has adopted incentives for energy generation and energy conservation. Participation in these nationwide initiatives is voluntary, but is strongly encouraged. *Energy Generation.* Applicants will be awarded points if the proposal includes the installation of energy generation systems to be funded by a third party. The proposal must include an overview of the energy generation system being proposed. Evidence that an energy generation system has been funded by a third party and that it has a quantifiable positive impact on energy consumption will be required. (5 points) *Energy Conservation.* Applicants will be awarded points to construct (or substantially rehabilitate) housing that earns the ENERGY STAR label for new residential construction. Units earning the ENERGY STAR label must be independently verified to meet guidelines for energy efficiency as set by the U.S. Environmental Protection Agency. All procedures used in verifying a unit for the ENERGY STAR label must comply with national Home Energy Ratings System
(HERS)guidelines. ENERGY STAR guidelines for residential construction apply to homes that are three stories or less and single or low-rise multi-family residential buildings. The Applicant will include in the summary an explanation of how they plan to incorporate ENERGY STAR. Construction plans pertaining to energy efficiency must be developed with, reviewed, and accepted by a HERS certified rater, the contractor, and the owner. Progress inspections must be made at appropriate times by a HERS certified rater to ensure that the housing is being constructed or rehabilitated according to ENERGY STAR specifications. In order to receive final payment, applicants will be required to submit the appropriate rating reports from the HERS rater to USDA Rural Development as evidence that the housing has been constructed to meet the standards of ENERGY STAR. In the event that housing does not meet ENERGY STAR guidelines for new residential construction, USDA Rural Development shall, at its discretion, deduct 5 points from future funding proposals. For further information about ENERGY STAR, see *http://www.energystar.gov* or call the following toll-free numbers:
(888)782-7939 or
(888)588-9920 (TTY). (5 points) 2. The National Office will rank all requests nationwide and distribute funds to states in rank order, within funding limits. If insufficient funds remain for the next ranked proposal, USDA Rural Development will select the next ranked proposal that falls within the remaining levels. Point score ties will be handled in accordance with 7 CFR 3560.56(c)(2). D. Applications That Do Not Require New Construction RA It is anticipated that new construction RA will not be available for FY 2008. Therefore, USDA Rural Development is inviting applications to develop units in markets that do not require RA. The market study for proposals must clearly demonstrate a need and demand for the units by prospective tenants at income levels that can support the proposed rents without tenant subsidies. The proposed units must offer amenities that are typical for the market area at rents that are comparable to conventional rents in the market for similar units. E. Set-Asides Loan requests will be accepted for the following set-asides: 1. Nonprofit set-aside. An amount of $6,255,900 has been set aside for nonprofit applicants as defined in 7 CFR 3560.11. All loan proposals must be in designated places in accordance with 7 CFR 3560.57. A state or jurisdiction may receive one proposal from this set-aside, which cannot exceed $1 million. A state could get additional funds from this set-aside if any funds remain after funding one proposal from each participating state. If there are insufficient funds to fund one loan request from each participating state, selection will be made by point score. If there are any funds remaining, they will be handled in accordance with 42 U.S.C. 1485(w)(3). Funds from this set-aside will be available only to nonprofit entities, which may include a partnership that has as its general partner a nonprofit entity or the nonprofit entity's for-profit subsidiary which will be receiving low-income housing tax credits authorized under section 42 of the Internal Revenue Code of 1986. To be eligible for this set-aside, the nonprofit entity must be an organization that:
(a)Will own an interest in the project to be financed and will materially participate in the development and the operations of the project;
(b)Is a private organization that has nonprofit, tax exempt status under section 501(c)(3) or section 501(c)(4) of the Internal Revenue Code of 1986;
(c)Has among its purposes the planning, development, or management of low-income housing or community development projects; and
(d)Is not affiliated with or controlled by a for-profit organization. 2. Underserved counties and colonias set-aside. An amount of $3,475,500 has been set aside for loan requests to develop units in the 100 most needy underserved counties or colonias as defined in section 509(f) of the Housing Act of 1949, as amended. 3. EZ, EC, and REAP set-aside. An amount of $1,456,524 has been set-aside to develop units in an EZ, EC, or REAP zone. Loan requests that are eligible for this set aside are also eligible for regular Section 515 funds. If requests for this set-aside exceed available funds, selection will be made in accordance with 7 CFR 3560.56(c). II. Funding Limits A. Individual loan requests may not exceed $1 million. This applies to regular section 515 funds and set-aside funds. The Administrator may make an exception to this limit in cases where a State's average total development costs exceed the National average by 50 percent or more. B. No state may receive more than 20 percent of the total available for new construction, including set-aside funds. III. Rental Assistance
(RA)New construction RA will not be available for FY 2008. Unused RA may be allocated from within the state jurisdiction to approved new construction projects. New construction RA may not be used in conjunction with a transfer or subsequent loan for repairs or rehabilitation, preservation purposes or for inventory property sales. IV. Application Process All applications for section 515 new construction funds must be filed with the appropriate Rural Development State Office and must meet the requirements of 7 CFR 3560.56, as well as comply with the provisions of Section V. of this NOFA. Incomplete applications will not be reviewed and will be returned to the applicant. No application will be accepted after 5:00 p.m., local time, on the application deadline previously mentioned unless that date and time is extended by a Notice published in the **Federal Register** . V. Application Submission Requirements A. Each application shall include the information, documentation, forms and exhibits required by 7 CFR 3560.56, as well as comply with the provisions of this NOFA. Forms to be included in initial application package: 1. Form SF 424, Application for Federal Assistance, which can be found online at *http://apply07.grants.gov/apply/forms/sample/SF424-V2.0.pdf* ; 2. Form RD 1940-20, Request for Environmental Information, which can be found online at *http://forms.sc.egov.usda.gov/efcommon/eFileServices/Forms/RD1940-0020_060400V01.pdf* ; 3. Form RD 3560-7, Multiple Family Housing Project Budget/Utility Allowance, which can be found online at *http://formsadmin.sc.egov.usda.gov/efcommon/eFileServices/Forms/RD3560-0007_060500V01.pdf* ; 4. Form HUD 2530, Previous Participation Certification, which can be found online at *http://www.hud.gov/offices/adm/hudclips/forms/files/2530.pdf* 5. Form RD 1924-13, Estimate and Certificate of Actual Costs, which can be found online at *http://forms.sc.egov.usda.gov/efcommon/eFileServices/Forms/RD1924-0013.pdf* ; 6. Form RD 400-4, Assurance Agreement, which can be found online at *http://forms.sc.egov.usda.gov/efcommon/eFileServices/Forms/RD0400-0004_970300V01.pdf* ; 7. Form RD 410-9, Statement Required by the Privacy Act (for individuals only), which can be found online at *http://www.rurdev.usda.gov/regs/forms/0410-09.pdf* ; Information requested in initial application package: I. To establish applicant eligibility: A. Current (within *6 months* ) financial statements with the following paragraph certified by someone with the legal authority to do so: “I/we certify the above is a true and accurate reflection of my/our financial condition as of the date stated herein. This statement is given for the purpose of inducing the United States of America to make a loan or to enable the United States of America to make a determination of continued eligibility of the applicant for a loan as requested in the loan application of which this statement is a part.” B. Check for $28 from individual applicants and $40 from organizational applicants made out to United States Department of Agriculture. This will be used to pay for credit reports obtained by the USDA Rural Development. C. Statement signed by applicants that they will pay any cost overruns. D. Proposed limited partnership agreement and certificates of limited partners, if applicable. (USDA Rural Development requirements should be contained in one section of the agreement and their location identified by the applicants or their attorney in a cover sheet.) E. If a nonprofit organization: 1. Tax-exempt ruling from the IRS designating them as a 501(c)(3) or 501(c)(4) organization. If the designation is pending, a copy of the designation request must be submitted. 2. Purpose statement, including the provision of low income housing. 3. Evidence of organization under State and local law, or copies of pending applications. 4. List of Board of Directors. F. If a limited liability company, proposed operating agreement and the authorized agent who has the authority to complete the loan application and loan closing documents. G. If a trust, organizational documents and attorney opinion letter that the trust is validly formed and identifying the authorized representative to act on the trust's behalf. II. To establish project feasibility: A. Market feasibility documentation: Either a market study or a market survey, as appropriate. B. Type of project and structures proposed (total number of units by bedroom size, size of each unit type, size and type of other facilities). C. Schematic drawings: 1. Site plan, including contour lines; 2. Floor plan of each living unit type and other spaces, such as laundry facilities, community rooms, stairwells, etc.; 3. Building exterior elevations; 4. Typical building exterior wall section; and 5. Plot plan. D. Description and justification of related facilities, schedule of separate charges for related facilities. E. Type and method of construction (owner builder, negotiated bid, or contractor method). F. Estimated costs (Form RD 1924-13). G. Statement of proposed management. H. Congregate services package/plan (if applicable). I. Statement of support from other Government services providers to the project (congregate only). J. Response to the Uniform Relocation Assistance Act (if applicable). III. To establish project financing: A. Statement of budget and cash flow (applicant completes Form RD 3560-7), including type of utilities and utility allowance, if applicable and contribution to reserves. B. Congregate services charges (if applicable). C. Status of efforts to obtain leveraged funds. D. Proposed construction financing (interim or multiple advance; if interim financing, letter of interest from intended lender). IV. Environmental and site information: A. Environmental information (applicant completes Form RD 1940-20). B. Evidence of compliance with Executive Order 12372 (A-95) (if applicable) Form SF 424 is sent to a clearinghouse for intergovernmental review. C. Provide an ASTM Phase I Environmental Site Assessment to cover environmental due diligence. Refer to Chapter 3 of the section 515 Rural Rental Housing Loan Origination Handbook. D. Map showing location of community services such as schools, hospitals, fire and police departments, shopping malls and employment centers. E. Evidence of submission of project description to State Housing Preservation Office with request for comments. F. The applicant's comments regarding relevant offsite conditions. G. The applicant's explanation of any proposed energy efficiency components. Applicants are encouraged, but not required, to include a checklist and to have their applications indexed and tabbed to facilitate the review process. The Rural Development state office will base its determination of completeness of the application and the eligibility of each applicant on the information provided in the application. B. Applicants are advised to contact the Rural Development state office serving the place in which they desire to submit an application for the following: 1. Questions pertaining to the application process; and 2. List of designated places for which applications for new section 515 facilities may be submitted. VI. Areas of Special Emphasis or Consideration A. Pursuant to 7 CFR 3560.56(c)(1)(iii), USDA Rural Development encourages the use of funding from other sources in conjunction with Agency loans through its national office initiative, outlined in Section I.C.1(c) of this NOFA. B. $1,000,000 is available nationwide in a reserve for States with viable State RA programs. In order to participate, States are to submit specific written information about the State RA program, i.e., a memorandum of understanding, documentation from the provider, etc., to the National Office prior to the application deadline. VII. Non-Discrimination Statement USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at
(202)720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call
(800)795-3272 (voice), or
(202)720-6382 (TDD). “USDA is an equal opportunity provider, employer, and lender.” Dated: March 5, 2008. Peter D. Morgan, Acting Administrator, Rural Housing Service. [FR Doc. E8-4949 Filed 3-11-08; 8:45 am] BILLING CODE 3410-XV-P DEPARTMENT OF AGRICULTURE Rural Housing Service Notice of Funds Availability for the Section 533 Housing Preservation Grants for Fiscal Year 2008 AGENCY: Rural Housing Service, USDA. ACTION: Notice; correction. SUMMARY: The Rural Housing Service published a document in the **Federal Register** on February 20, 2008, announcing that it is soliciting competitive applications under its Housing Preservation Grant program. The listing for the Rural Development Oregon State Office address was incorrectly identified in the notice. FOR FURTHER INFORMATION CONTACT: Bonnie Edwards-Jackson, Senior Loan Specialist, Multi-Family Housing Processing Division, USDA Rural Development, Stop 0781, 1400 Independence Avenue, SW., Washington, DC 20250-0781, telephone
(202)690-0759 (voice) (this is not a toll free number) or
(800)877-8339 (TDD-Federal Information Relay Service) or via e-mail at, *Bonnie.Edwards@wdc.usda.gov.* Correction In the **Federal Register** of February 20, 2008, in FR Doc. 08-690, on page 9275, in the first column, the listing for the Rural Development Oregon State Office, address, telephone number and person to contact should read: Oregon State Office, 1201 NE., Lloyd Blvd., Suite 801, Portland, OR 97232-1274,
(503)414-3340, TDD (503)414-3387, Barb Brandon. Dated: February 28, 2008. Russell T. Davis, Administrator, Rural Housing Service. [FR Doc. E8-4854 Filed 3-11-08; 8:45 am] BILLING CODE 3410-XV-P BROADCASTING BOARD OF GOVERNORS Sunshine Act Date and Time: Tuesday, March 11, 2008. 3 p.m.-3:45 p.m. Place: Cohen Building, Room 3321, 330 Independence Ave., SW., Washington, DC 20237. Closed Meeting: The members of the Broadcasting Board of Governors
(BBG)will meet in closed session to review and discuss a number of issues relating to U.S. Government-funded non-military international broadcasting. They will address internal procedural, budgetary, and personnel issues, as well as sensitive foreign policy issues relating to potential options in the U.S. international broadcasting field. This meeting is closed because if open it likely would either disclose matters that would be properly classified to be kept secret in the interest of foreign policy under the appropriate executive order (5 U.S.C. 552b.(c)(1)) or would disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed agency action. (5 U.S.C. 552.(c)(9)(B)). In addition, part of the discussion will relate solely to the internal personnel and organizational issues of the BBG or the International Broadcasting Bureau. (5 U.S.C. 552b.(c)(2) and (6)). FOR FURTHER INFORMATION CONTACT: Persons interested in obtaining more information should contact Timi Nickerson Keneally at
(202)203-4545. Dated: March 5, 2008. Timi Nickerson Kenealy, Acting Legal Counsel. [FR Doc. 08-1016 Filed 3-10-08; 9:56 am]
Connectionstraces to 32
Traces to 32 documents
U.S. Code
47 references not yet in our index
  • 10 CFR 50
  • 14 CFR 39
  • 14 CFR 71
  • 33 CFR 117
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • 40 CFR 80
  • 40 CFR 9
  • Pub. L. 104-113
  • 40 CFR 271
  • 49 CFR 192
  • 49 CFR 1.53
  • 50 CFR 424.14(b)(1)
  • 50 CFR 424.14(b)(2)(ii)
  • 50 CFR 424.14(b)(2)(iii)
  • 50 CFR 424.14(b)(2)
  • 50 CFR 424.11(f)
  • 7 CFR 1924
  • 7 CFR 3560
  • 7 CFR 3560.11
  • 7 CFR 3560.574
  • 7 CFR 3560.562(c)(2)
  • 7 CFR 1901
  • 7 CFR 3015
  • 7 CFR 3016
  • 7 CFR 3019
  • 7 CFR 1940
  • 7 CFR 3560.56(c)(2)
  • Pub. L. 110-161
  • 7 CFR 3560.406
  • 7 CFR 3560.152
  • 7 CFR 3560.55
  • 7 CFR 3560.55(a)(5)
  • 7 CFR 3560.55(a)(6)
  • 7 CFR 3560.2
  • 7 CFR 3560.60(d)
  • 7 CFR 3560.410
+ 7 more
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cites case law
Proposed Rules
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Fed. Reg.Proposed Rules
Fed. Reg.Notices
U.S.C.§ 106
C.F.R.§ 39.19
C.F.R.§ 71.1
C.F.R.§ 117.5
U.S.C.§ 605
Fed. Reg.Notices
Fed. Reg.Notices
Cite10 CFR 50
Cite14 CFR 39
Cite14 CFR 71
Cites 79 · showing 12Cited by 0 across 0 sources
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