Contract Number 68 W 99 010 Task Order # 0122 FINAL Convening Assessment Report on the Feasibility of a Negotiated Rulemaking Process to Develop the All Appropriate Inquiry Standard Required under the Small Business Liability Relief and Brownfields Revitalization Act ( Public Law No. 107 118)

U. S. Environmental Protection Agency Office of Solid Waste and Emergency Response Office of Brownfields Cleanup and Redevelopment Submitted by Susan L. Podziba Susan Podziba & Associates 21 Orchard Road Brookline, MA 02445 under subcontract to Marasco Newton Group Alexandria, VA December 17, 2002 Convening Assessment Report on the Feasibility of a Negotiated Rulemaking Process to Develop the All Appropriate Inquiry Standard Required under the Small Business Liability Relief and Brownfields Revitalization Act ( Public Law No. 107 118)

Table of Contents INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 FEASIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CATEGORIES OF STAKEHOLDER GROUPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 SUBSTANTIVE ISSUES: KEY CONCERNS BY STAKEHOLDER GROUP . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 KEY ISSUES ACROSS STAKEHOLDER GROUPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 PROCEDURAL ISSUES RELATED TO THE NEGOTIATED RULEMAKING PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 PROCESS DESIGN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 PROTOCOLS AND PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 APPENDIX A: U. S. EPA Negotiated Rulemaking Fact Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 APPENDIX B: List of Interviewees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Convening Assessment Report on the Feasibility of a Negotiated Rulemaking Process to Develop the All Appropriate Inquiry Standard Required under the Small Business Liability Relief and Brownfields Revitalization Act ( Public Law No. 107 118)

INTRODUCTION In accordance with the Negotiated Rulemaking Act of 1996, this report describes the findings and recommendations of Susan Podziba, the neutral convener, regarding the feasibility of a negotiated rulemaking process to develop the All Appropriate Inquiry Standard ( CERCLA § 101( 35)( B)), which the U. S. Environmental Protection Agency ( EPA) is required to promulgate under the Small Business Liability Relief and Brownfields Revitalization Act ( Public Law No. 107 118).

Negotiated rulemaking is a process whereby a committee composed of representatives of stakeholder groups, which will be significantly affected by a proposed rule, is charged with the goal of reaching consensus on the text of the proposed rule. The federal agency responsible for the regulation,   to the maximum extent possible consistent with the legal obligations of the agency, will use the consensus of the committee with respect to the proposed rule as the basis for the rule proposed by the agency for notice and comment ( Negotiated Rulemaking Act of 1996, § 563( a)( 7)). ( See Appendix A for the U. S. EPA Fact Sheet on Negotiated Rulemaking.)

This convening assessment report is divided into sections on background, feasibility, categories of stakeholders, substantive issues by stakeholder group, key issues across stakeholder groups, procedural issues, participation, process design, protocols and procedures, and conclusion.

1 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 BACKGROUND On January 11, 2002, the Small Business Liability Relief and Revitalization Act ( Pub. L. No. 107 118), also known as the Brownfields Law, was enacted. The Brownfields Law, among other issues, pertains to the establishment of standards and practices for all appropriate inquiry ( § 101( 35)( B) of CERCLA). The all appropriate inquiry standards and practices are relevant to:   the innocent landowner defense to CERCLA liability ( § 101 ( 35));   the contiguous property exemption to CERCLA liability ( § 107( q));   the bona fide prospective purchaser exemption to CERCLA liability ( § 107 ( r)( 1) and 101( 40)); and   the brownfields site characterization and assessment grant programs ( § 104( k)( 2)).

The Brownfields Law requires EPA to establish regulations setting forth   standards and practices  to carry out all appropriate inquiry by January 11, 2004, two years after enactment. In addition, the Brownfields Law establishes an interim standard for the conduct of all appropriate inquiry to be used until EPA promulgates federal standards. For properties purchased after May 31, 1997, Congress established the interim standard as the American Society for Testing Materials ( ASTM) 1997 Phase I standard for assessment of properties. EPA is developing a direct final rule to allow for the use of the ASTM 2000 Phase 1 standard as an interim standard for all appropriate inquiry given consistent feedback from stakeholders that the 1997 standard is no longer current industry practice, nor is it readily available.

Susan Podziba of Susan Podziba & Associates, as convener, interviewed approximately sixty representatives of federal, state, county, local, and tribal government; for profit and not for profit developers, real estate and environmental attorneys, real estate brokers, bankers and lenders, environmental professionals, environmentalists, environmental justice communities, and insurance companies ( See Appendix B for Listing of Interviewees). The purpose of the interviews was to determine the feasibility of a negotiated rulemaking process relative to criteria identified in the Negotiated Rulemaking Act and the U. S. EPA Fact Sheet on Negotiated Rulemaking including:

  the principal categories of stakeholders that will be affected by and are interested in the all appropriate inquiry standard;

  key issues and concerns of stakeholders relative to an all appropriate inquiry standard and the interdependence of interests among stakeholders;

  the likelihood of convening a balanced committee of representatives 2 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 of stakeholders, who are willing and able to participate in good faith in the negotiation process;

  individuals and/ or organizations that can best represent the views and perspectives of each stakeholder group for the negotiated rulemaking; and   the likelihood of success of a negotiated rulemaking process to develop federal regulatory standards for implementation of all appropriate inquiry within the required timeframe.

FEASIBILITY Susan Podziba finds that a negotiated rulemaking process to develop the all appropriate inquiry standard ( the standard) has a reasonably good chance of resulting in consensus. Virtually every interviewee believed that a negotiated rulemaking would be successful. Only one person raised concerns about negotiated rulemakings, generally, but stated that given the clear scope of this effort, that is, defining all appropriate inquiry, it is an appropriate application for a negotiated rulemaking.

To be sure, there are differences of opinion on key aspects of the standard, but there is also a convergence of interests on many of its elements. There was a high degree of interest in participating among the interviewees and across all the identified stakeholder groups.

Overall, there is general agreement that the all appropriate inquiry standard should be clear and consistently applied, result in accurate information concerning the environmental conditions of assessed properties, and function to promote and not inhibit brownfields redevelopment.

An additional benefit of using a negotiated rulemaking process is that representatives of all stakeholder groups will have a thorough understanding of the new standard as well as the rationale for its elements. This will be useful as trade associations undertake their role of educating their memberships about the standard and about opportunities inherent in brownfields redevelopment.

No matter how favorable the prospect for consensus, there is always uncertainty in prejudging outcomes of negotiation processes, particularly when potentially opposite points of view must be reconciled. The challenge for the negotiating 3 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 committee will be to demonstrate commitment and flexibility to work together as a problem solving team to develop the standard. The interviewees indicated a willingness to expend the effort necessary to achieve these objectives.

On balance, Susan Podziba, in her capacity as convener, finds that the application of a negotiated rulemaking process to develop the all appropriate inquiry standard has a reasonable likelihood of success, and if successful, will result in a high quality standard that balances the interests of the relevant stakeholders.

CATEGORIES OF STAKEHOLDERS Susan Podziba identified nine categories of key stakeholders. She recommends that the U. S. Environmental Protection Agency invite representatives from each of the following categories1 to participate in the negotiated rulemaking:   Other Federal Agencies2   State Government   Local Government   Tribal Government   Developers: ( residential, commercial, industrial, for profit, notfor profit)   Bankers and Lenders   Environmentalists   Environmental Justice Community   Environmental Professionals 1 Some interviewees suggested that ASTM be included as a stakeholder. However, ASTM is an organization devoted to the creation of its own consensus industry standards. This convener recommends that ASTM not have its own negotiator. Individuals affiliated with the development of the ASTM standard are in key positions in their trade associations and highly knowledgeable of the elements of the standard. Therefore, it is highly likely that multiple individuals associated with ASTM will serve on the negotiating committee as representatives of their stakeholder groups.

2 Other federal agencies identified as federal stakeholders were the National Oceanic and Atmospheric Administration ( NOAA), Department of Housing and Urban Development ( HUD), and Department of Justice ( DOJ). NOAA serves as a Trustee for Natural Resource Damages under CERCLA. NOAA will maintain contact with EPA throughout the negotiations, but will not require a separate negotiator. HUD and DOJ have each indicated a preference for participating in the negotiations, but will confer with EPA officials pending a decision to proceed with a negotiated rulemaking.

4 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 In addition, the following groups are interested parties with great depth of knowledge relevant to the implementation of the standard. These parties typically represent multiple stakeholders, for example, environmental attorneys and insurance companies include developers, environmental professionals, and state and local governments among their clients at any given time. Thus, it is suggested that the parties listed below serve as resource parties on the negotiating committee, given their ability to analyze the impacts of various options across multiple stakeholders.   Environmental Attorneys   Real Estate Brokers   Environmental Insurance Professionals SUBSTANTIVE ISSUES: KEY CONCERNS IDENTIFIED BY EPA AND STAKEHOLDER GROUPS U. S. Environmental Protection Agency Congress mandated that EPA create an all appropriate inquiry standard to comply with CERCLA § 101( 35)( B), as amended by the Brownfields Law. The key interests of EPA relative to this standard, and generally reflected in its Brownfields Program, are to protect the environment and public health, support partnerships among brownfields stakeholders, encourage the private sector marketplace for redevelopment of brownfields properties, and encourage sustainable reuse.

EPA will work to create a standard that satisfies the legal provisions of the statute regarding funding and liability, while promoting environmental protection, economic development, and community revitalization.

Other Federal Agencies The Department of Housing and Urban Development ( HUD) is engaged in activities to promote community revitalization. Among HUD s brownfields programs is its Brownfields Economic Development Initiative ( BEDI), which makes grants to stimulate local government and private sector partnerships for the redevelopment of brownfields sites. Other HUD programs provide loan guarantees and mortgage insurance. HUD s key interests are to promote brownfields redevelopment as a strategy for community revitalization and to protect the public 5 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 from environmental hazards. In addition, as a mortgage insurer, HUD is concerned about CERCLA liability on foreclosed properties.

The primary interest of the Department of Justice is the enforceability of the statute.

State Environmental Agencies There is great disparity among states across the country with regard to brownfields programs. Some states include sophisticated site assessment standards within their voluntary cleanup programs whereas others have no programs at all. Some states will likely continue to require prospective purchasers and developers to conduct site assessments under their voluntary cleanup programs to obtain state provided   no further action  letters. Other states will likely adopt the federal standard for their programs and want the standard to eliminate the need for their states to provide comfort letters or prospective purchaser agreements except under extraordinary conditions.

Some state programs require prospective purchasers to obtain specific information. The investigation must satisfy the state s informational requirements; time limits do not excuse prospective purchasers from meeting such requirements.

In addition, state programs typically require sampling when there is a likelihood of contamination based on past use. Interviewees suggested that there are some activities often undertaken within the context of phase I assessments that they deem unnecessary and other activities not undertaken which they require. For example, some state programs do not require previous owner interviews or a search for surplus sites within a three mile radius, but do require a review of immediately adjacent properties. These states find that the clarity and certainty provided by their programs have given their states a comparative advantage in attracting developers to brownfields properties.

Returning brownfields properties to beneficial use is a key interest of states. However, states are also concerned about granting undeserved liability relief and then being unable to identify responsible parties to undertake cleanups when contamination is found. Some states have found a significant percentage of properties to be contaminated that were identified as clean properties in assessment reports.

Finally, as brownfields grantees receiving EPA assessment funds, states will have to conduct all appropriate inquiry assessments as required under the Brownfields Law.

6 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Local Government Local governments will be impacted by the standard in a variety of ways. First, there is great interest in the redevelopment of brownfields, which transform fallow properties into productive use thereby increasing tax rolls. Cites and towns have worked hard to attract developers to their brownfields sites. Local governments have viewed potential liability for new owners at brownfields sites as a barrier to increased redevelopment of brownfields sites and supported the Brownfields Law as a means to removing a barrier to redevelopment.

Local governments are concerned about contamination leaching into soils and groundwater and its potential for impacting human health. In addition, contaminated properties are potential liabilities, which can reduce municipal credit ratings.

As with states, local governments, as brownfields grantees, will be required to conduct all appropriate inquiries under the grant program. Municipalities often become new owners of contaminated properties through purchase, foreclosure for non payment of taxes, and eminent domain. Thus, local governments are interested in the protection against CERCLA liability that the standard will provide.

Finally, local government interviewees raised the additional concern of their inability to gain access to properties subject to involuntary acquisition through eminent domain, condemnation, and/ or non payment of taxes. Thus, local governments are interested in an exemption from visual inspection and owner interviews for involuntary acquisitions when there is a recalcitrant owner.

Tribal Government Tribal government will be impacted by the standard in a variety of ways. First, tribes want accurate assessments of contamination of their lands. For some tribes, brownfields programs are designed to de contaminate and return land to open space. Tribal governments receive brownfields grants and so will be required to conduct all appropriate inquiry assessments under the grant program. Tribal brownfields projects often involve HUD and the Bureau of Indian Affairs, each of which have assessment requirements. Thus, tribal governments want the standard to be clear and well defined so that it is easily melded with other federal agency requirements.

7 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Tribal governments are concerned about the costs of assessments. Related to cost is a concern that too narrow a definition of environmental professional, that is, who can conduct assessments, could make it more difficult for tribes to access this work.

Developers Developers want a standard that is clear, predictable, consistently enforced, reasonably inexpensive, and not too time consuming, and which, when complied with, will provide liability protection without reopeners. Clarity is crucial for developers, who fear that a lack of clarity could result in the loss of a credible liability defense.

Developers are motivated to learn about contamination on properties before purchase because if a property is more contaminated than expected, a developer may negotiate a reduced price or choose to invest in an alternative property. They do not see the standard as providing a   pass to existing owners, but rather immunizing new owners who are interested in putting property back into productive use.

The time necessary for an assessment is important to developers because an owner is usually not willing to keep a property off the market long and because a favorable financing package may become unavailable given fluctuating interest rates.

Many interviewees use the ASTM standard for their assessments. They stated that thousands of people know how to conduct these assessments, and are concerned that a changed assessment protocol will result in confusion within the industry. Thus, they want to be sure that any changes will result in significant environmental benefit.

Developers would like to reduce the discretion of environmental professionals and therefore, the need to negotiate assessment workscopes. They fear that rejecting a recommendation in a proposed workscope could leave them vulnerable to a loss of liability protection later. They would like to see a minimum standard for a phase I assessment with triggers for phase II assessments.

Additionally, some interviewees expressed the concern that it may be difficult for EPA to maintain a unified negotiation stance given the involvement of multiple offices within the agency.

8 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Developers do not want the standard to supersede existing state statutory programs, which they point to as programs that have encouraged the cleanup and redevelopment of brownfield sites. Some expressed their satisfaction with rigorous state programs because of the certainty they provide and their use of creative means for dealing with contaminants.

Overall, developers want the standard to achieve the goal of promoting brownfields redevelopment, which will require that assessments not be too costly or time consuming and that liability relief be sufficiently protective. They want to ensure that the standard is consistent with intent of the Brownfields Law, that is, to promote and not inhibit brownfields redevelopment.

Bankers/ Lenders Bankers and lenders are most interested in limiting risk when making loans. Lenders are protected from CERCLA liability by the secured creditor exemption, but on foreclosed properties they will use the all appropriate inquiry standard as an additional liability protection.

Banks require phase I assessments on properties in order to meet conditions set out by the secondary loan market and by rating agencies, even if their own requirements do not indicate the need for an assessment. As a result, the standard is expected to impact a great percentage of real estate transactions throughout the country.

To reduce risk, banks and lenders support a rigorous standard. However, it is also banks and lenders that typically drive the short time frames for obtaining information because fluctuating interest rates can impact the viability of a deal.

When a phase I assessment indicates a recognized environmental condition, most banks will require a phase II assessment and a resolution of the condition before approving the loan. Progressive banks and lenders have shown a willingness to make loans prior to cleanups, when cleanup plans, consistent with intended future uses, are in place through state programs. For these banks, a lack of willingness to clean a site indicates a negative character issue for the borrower, and the bank would not make the loan. Banks prefer good information on the site, but will also accept insurance policies to protect their loans when good information is not readily available.

9 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Overall, the lending community wants a clear and rigorous standard that results in the information necessary to determine the environmental condition of a property at moderate cost and within a reasonable time frame. They see the challenge of developing the standard as one in which the negotiators identify the difference between necessary information and complexity for the sake of additional work.

Environmentalists Environmental groups are primarily concerned that the standard require rigorous investigation of sites. They want historical searches to include title search, spills data base, enforcement actions, prior investigations, and visible contaminated areas. They want the standard to trigger sampling when historical searches identify past contamination.

Environmentalists would like to include the possibility of reopeners as a means to motivate complete cleanups. They want to be sure that the standard is not written so broadly as to allow parties to escape from liability and also want some assurances regarding states  abilities to enforce federal standards.

Environmental groups are very supportive of brownfields redevelopment. They prefer brownfields redevelopment to fallow, contaminated properties but want to ensure proper cleanup of contaminated sites.

Environmental Justice Community The interests of the environmental justice community are similar to those of the environmental groups. However, as the communities where many brownfields sites are located, the environmental justice community raises an additional concern of public notification of contamination and proposed cleanup plans. They would like the standard to include a component defining when and how often the public should be notified of work on a brownfields site. As one interviewee stated,   it is frightening if you live across the street from a lot, and one day people show up in moon suits .

Environmental Professionals The stakeholder group of environmental professionals is divided into two camps, primarily according to their preferred definition of an environmental professional.

10 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 However, all expressed concerns about the possibility of inexperienced individuals characterizing contaminated sites as clean.

One camp believes strongly that an environmental professional should be defined as a licensed professional engineer, geologist, or hydrogeologist, which are regulated by state boards and require adherence to an ethical responsibility to protect human health and the environment. This camp believes that the standard should enable them to use their professional judgement to determine the necessary workscope required to accurately characterize the site. They state that engineers are familiar with industrial processes and therefore, know what chemicals to look for when an historical search yields information about a manufacturing facility and that geologists have a keen understanding of subsurface conditions. They are concerned that untrained individuals with little experience, who call themselves environmental professionals, will miss visible contaminants and will not know what to look for thereby identifying contaminated sites as free from environmental contamination. Members of this camp stated that assessments should performed by, or under the direction of, licensed professional engineers, geologists, or hydrogeologists.

The other camp wants to define an environmental professional more broadly and based on experience as opposed to a particular academic degree. This group is also concerned about inexperienced individuals potentially missing contamination. They raised the concern that some prospective purchasers simply want an environmental consultant with a liability insurance policy so that if contamination is found later, the purchaser can find recourse under the policy. However, some environmental consultants have begun to limit their own liability to the cost of the report. Some members of this camp want the standard to consist of a very clear step by step approach to assessments.

Finally, there is agreement among both camps of environmental professionals that a Phase II assessment requires the professional judgment of individuals with expertise related to the recognized environmental conditions identified in the Phase I assessment.

11 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 KEY ISSUES IDENTIFIED ACROSS STAKEHOLDER GROUPS A primary focus of the all appropriate inquiry negotiations will be the statutory criteria listed in the Brownfields Law § 223( 2)( B)( iii), which amends CERCLA § 101( 35). In addition, interviewees across stakeholder categories raised other key issues, which are described below.

Brownfields Law § 223( 2)( B)( iii) Statutory Criteria: In promulgating regulations that establish the standards and practices referred to in clause ( ii), the Administrator shall include each of the following:

( I) The results of an inquiry by an environmental professional.

( II) Interviews with past and present owners, operators, and occupants of the facility for the purpose of gathering information regarding the potential for contamination at the facility.

( III) Reviews of historical sources, such as chain of title documents, aerial photographs, building department records, and land use records, to determine previous uses and occupancies of the real property since the property was first developed.

( IV) Searches for recorded environmental cleanup liens against the facility that are filed under Federal, State, or local law.

( V) Reviews of Federal, State, and local government records, waste disposal records, underground storage tank records, and hazardous waste handling, generation, treatment, disposal, and spill records, concerning contamination at or near the facility.

( VI) Visual inspections of the facility and of adjoining properties.

( VII) Specialized knowledge or experience on the part of the defendant.

( VIII) The relationship of the purchase price to the value of the property, if the property was not contaminated.

( IX) Commonly known or reasonably ascertainable information about the property.

( X) The degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation.

12 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Legal Defense v. Proactive Requirement: The statute requires EPA to develop a standard for all appropriate inquiry, which is a legal defense against CERCLA liability for new owners. This would suggest a limited use for owners defending themselves against CERCLA liability in court. However, the standard will be used proactively as a standard of due diligence to avoid the risk of liability and is likely to be required by lenders for all property transactions where there is any risk of environmental contamination. As one interviewee stated,   Whatever EPA sets will become the de facto pre market environmental assessment requirement.

General Fear of Change/ Industry Disruption: Since the first ASTM standard was developed to   reduce legal uncertainty associated with analyzing and assessing real property and to provide lenders with objective information about a site to conduct proper risk analysis,  3 it has become the industry standard for most private transactions. The stakeholder groups that use this standard are concerned about the potential for disruption of transactions as the industry moves from a known, to an as yet, unknown set of procedures.

Level of liability relief to be granted: There is not a clear sense among stakeholders of the level of liability relief to be granted under the standard. Some think liability relief will be granted only for clean properties, that is, those determined to have no recognizable environmental conditions. Others assume the assessment will be used to determine recognized environmental conditions for which the new owner will not be liable. Still others expect that if a new owner conducts a cleanup for identified contaminants, the owner will not be liable for any additional past contamination found at the site.

Scope of the Standard: A key question raised by representatives of numerous stakeholder groups related to the scope of the standard is: Will the standard cover only the Phase I Assessment or provide direction for Phase I and Phase II assessments? Some interviewees supported the former and others the latter. In addition, some raised the question of whether or not the standard will include requirements for cleanup when contamination is found. Many interviewees suggested that the standard identify triggers for Phase II assessments. Those supporting a limited scope stated that historically, there has been little agreement on what a Phase II assessment should consist of given the unique aspects of each site.

Brownfields Site Assessments and All Appropriate Inquiry: The linking of these two caused concern for some interviewees who suggested two separate standards.

3 Crocker, Dianne, Editor,   Conflict Compromise Consensus: The Embroiled History of the ASTM ESA Standard,  Environmental Site Assessment Report, Volume VII, Number 7, July 2002, page 1.

13 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 However, the Brownfields Law states that Brownfields Site Assessments are to be performed in accordance with § 101( 35)( B), which is the regulatory citation for all appropriate inquiry.

Non CERCLA Contaminants: Given that this regulation will be written to assess CERCLA liability, there are questions about the inclusion of petroleum products, which are specifically excluded under CERCLA as well as other contaminants such as radon, asbestos, lead, and mold. Many lenders require assessments that identify these contaminants as well. Interviewees referred to their use of   ASTM plus,  whereby they use the ASTM standard as a starting point and then add a review of additional contaminants to the environmental assessment.

Starting Point for Development of the Standard: There are a number of ways to begin drafting the all appropriate inquiry standard. For example, one could begin with the statutory criteria listed in the Brownfields Law and work to further define each criterium. Other possibilities include beginning with either the ASTM standard or EPA or state documents that outline requirements of Phase I assessments and making revisions to meet the statutory requirements of the Brownfields Law. If the ASTM standard is used as a starting point, EPA will need to sort out copyright and licensing issues given that EPA will publish the eventual rule in the Federal Register, making it publicly available. Some interviewees involved in the development of the ASTM standard hope that it will be made available to be useful to EPA.

National Technology Transfer and Advancement Act ( NTTA) Public Law 104 113: Interviewees had various interpretations of the requirements under NTTA, which encourages government use of existing voluntary consensus standards, relative to ASTM 1527. Some interviewees suggested that the Agency must use the ASTM standard if it meets statutory requirements. However, it was also indicated that the current version does not meet all statutory requirements and is currently under review. The process for revising ASTM 1527 97 was accomplished over a two year period.

Searches for recorded environmental cleanup liens against the facility that are filed under Federal, State, or Local law: A question was raised regarding whether an assessment would require a search through federal, state, and local government agencies or only one of the above. There was some discussion about an administrative response such that EPA might create and maintain a database that lists all the relevant agencies to be contacted or to create a database of all the relevant information.

14 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Informational criteria: Related to the stringency of the eventual standard, there are disagreements concerning the level of information that should be sought versus the level of information that is available. Some raised the idea of a performance based standard such that if one got information from a source, one would not need to review all other sources. Others like the redundancy because it creates the possibility of finding additional issues.

Adjoining Properties: Some interviewees raised the question of when prospective purchasers should be required to include a visual inspection of adjoining properties.

Transaction Screen: ASTM developed a standard for a transaction screen, which is not done by an environmental professional. There are questions about whether or not this abbreviated screen will satisfy the requirements of all appropriate inquiry.

  Shelf Life  of an assessment: Questions were raised about how long an assessment would be considered useful in establishing the all appropriate inquiry liability defense. Some thought the shelf life of an assessment was 6 months, others one year, and still others, longer. This is especially relevant when a site has groundwater contamination and/ or migrating plumes.

New Technologies Available: Many interviewees referred to the new, field based technologies now available, which make sampling both cost effective and timely. Whereas in the past, samples were taken and sent to labs with results provided weeks later, technologies such as geoprobes provide immediate results. It is believed that such technologies provide better information about actual environmental conditions at reasonable cost.

Disclosure: Questions were raised about the disclosure of information obtained during due diligence research. What environmental information is a broker expected or required to disclose about a property to potential buyers? What, if any, information should be made available to the public?

Assessment Activities by Land Uses: Some interviewees suggested that the standard be constructed according to historic land uses. Each land use  residential, commercial, light industry, heavy industry  would require a different level of investigation.

Successive Purchasers: Many interviewees raised the question of the transferability of liability relief to a new purchaser.

15 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 PROCEDURAL ISSUES RELATED TO THE NEGOTIATED RULEMAKING PROCESS There are three procedural issues to be considered if EPA decides to proceed with a negotiated rulemaking process to develop the all appropriate inquiry standard.

Schedule. The statute requires the final regulation be promulgated by January 11, 2004. This would suggest that a negotiated rulemaking process should be initiated by January 2003 to ensure enough time for the negotiations as well as the required comment period. Representation. As required under the Negotiated Rulemaking Act and to ensure accurate representation at the negotiations, EPA is required to publish a Notice of Intent to Negotiate A Rule in the Federal Register, which would include a list of proposed members of the negotiating committee. During the comment period, additional parties may make nominations to the negotiating committee. EPA would decide if there were stakeholder groups that were not represented by the proposed committee members.

Starting Point: EPA will need to decide how to begin the drafting of the regulation. In other words, should the initial draft be a listing of the statutory criteria for all appropriate inquiry, the interim standard, or existing EPA guidance.

PARTICIPATION Susan Podziba identified nine categories of stakeholders that she recommends the U. S. Environmental Protection Agency invite to participate in the negotiated rulemaking. In addition, there are three categories of resource parties that would provide technical expertise to the Committee.

Most of the interviewees were interested in participating in the negotiated rulemaking. Some had concerns and expertise regarding the actual elements of the standard, and some held broader concerns regarding its rigor, cost, and time requirements. Some simply wanted to participate in order to be able to educate their members and constituents for future transactions.

The actual negotiations will be best served by a negotiating committee that represents and can articulate the actual range of broad and specific interests that 16 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 will need to be woven together to reach consensus on the all appropriate inquiry standard. Organizational members of the negotiating committee may consider selecting negotiators to create a committee that includes a combination and balance between individuals who will be directly affected by the standard and staff, who work with large numbers of people in the field and/ or communities.

The resource parties have technical expertise that will be useful throughout the negotiations, but are not stakeholder parties in that they do not have a set of interests they will seek to satisfy during the negotiations. Resource parties may participate fully in the deliberations of the committee, but will not have the right to dissent on elements of the regulatory language.

In addition to the U. S. Environmental Protection Agency, it is recommended that the proposed negotiating committee include the following members:

Other Federal Agencies4 U. S. Department of Housing and Urban Development U. S. Department of Justice State Government Association of State and Territorial Solid Waste Management Officials to identify two negotiators National Association of Attorneys General Local Government US Conference of Mayors National Association of Local Government Environmental Professionals Tribal Government Gila Tribe, Department of Environmental Quality Developers  Residential National Association of Home Builders  Commercial Real Estate Roundtable  Industrial National Association of Industrial and Office Parks  Not for profit Trust for Public Land National Brownfields Association Bankers/ Lenders Bank of America Freddie Mac Mortgage Bankers Association 4 The U. S. Department of Housing and Urban Development and the U. S. Department of Justice have indicated preferences for participation on the negotiating committee, but will consult with EPA before a final decision is made.

17 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Environmentalists Sierra Club Environmental Defense Environmental Justice Center for Public Environmental Oversight Partnership for Sustainable Brownfields Redevelopment Environmental Professionals Association of Soil and Foundation Engineers American Society of Civil Engineers National Ground Water Association Wasatch Environmental Resource Parties Environmental Attorneys ( through the Section of Environment, Energy, and Resources of the American Bar Association) Real Estate Brokers Environmental Insurance Professionals PROCESS DESIGN To begin the negotiated rulemaking process, EPA will need to establish a formal advisory committee in accordance with the Federal Advisory Committee Act ( FACA). As required under FACA, all meetings of the negotiating committee will be announced in the Federal Register and open to the public.

The negotiated rulemaking process will consist of a series of negotiating committee meetings and communications with and among negotiators between meetings. The process will be managed by a mediator.

Negotiations will begin with a preliminary meeting of all negotiators. The agenda for this meeting will be to prepare a set of organizational protocols, determine informational needs, define the negotiating agenda, determine the drafting method to be used, confirm a schedule of meetings, identify mechanisms for two way feedback between negotiators and constituents, and articulate key concerns related to the negotiations.

The preliminary meeting will be followed by a series of 5  6 negotiating sessions of two  three days each. If the committee decides to make use of a drafting work 18 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 group to develop proposals for the committee s review, part of these meetings may be set aside for such drafting.

After initial discussions of negotiators  key interests relative to the all appropriate inquiry standard, EPA will prepare a draft, including blank spaces for those areas which need more discussion before sections can be drafted. During the negotiating sessions, the committee will work its way through the agenda, which will encompass a review of the draft regulation. It is typical in a negotiated rulemaking for some sections of the rule to be more easily resolved than others. For the former, the committee will determine when it has reached   tentative agreements  indicating that the draft is satisfactory pending resolution of all other sections. Tentative agreements are sometimes reviewed after other decisions are made because of the impact of one section on another.

As the series of meetings proceeds, the agenda will consist of the remaining issues for which tentative agreements have not been reached and any tentative agreements, which a committee members ask to review, until all is resolved. The final draft will then be reviewed in total. After agreement is reached on all the regulatory language, EPA will draft the preamble to the proposed rule, which may then be subjected to negotiations until the committee reaches consensus on it.

PROTOCOLS AND PROCEDURES At its preliminary meeting, the negotiating committee ( Committee) will develop procedural ground rules that will govern its discussions and negotiations. The proposed ground rules will cover such matters as the following:

  mission of the negotiating Committee;

  obligations of and protections for Committee members;

  commitments that derive for members as a result of consensus agreements;

  composition of the Committee including its ability to add members, use alternates, have advisors, use workgroups to develop proposals, and caucuses;

  decision making rule ( definition of consensus);

  how to deal with media contacts;

19 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002   procedures to ensure the protection of confidential information;

  the recognition that meetings are open to the public;

  the manner in which a record of the sessions will be kept and distributed;

  schedule of meetings and planned completion date; and   roles and responsibilities of the mediators.

CONCLUSION Susan Podziba, as convener, finds that use of a negotiated rulemaking process to develop the all appropriate inquiry standard ( § 101( 35)( B) of CERCLA), as required under the Small Business Liability Relief and Revitalization Act ( Pub. L. No. 107 118), also known as the Brownfields Law, is feasible and appropriate, and that there is a reasonably good chance of successfully reaching a consensus agreement among stakeholders on this standard.

20 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 APPENDIX A U. S. EPA NEGOTIATED RULEMAKING FACT SHEET 21 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 U. S. ENVIRONMENTAL PROTECTION AGENCY NEGOTIATED RULEMAKING FACT SHEET WHAT IS A RULE ?

A rule or regulation is the equivalent of an operating or implementation manual for a part of a statute or act of Congress. A rule gives those subject to its requirements more detailed instructions or prohibitions regarding activities that are addressed by the statute.

HOW ARE RULES USUALLY WRITTEN?

Generally a federal agency's staff drafts the text of a proposed rule. After circulation and comment within the agency, the rule will be printed in the Federal Register as a proposed rule. The public is then invited to comment on the rule. After reading and analyzing the public s comment the agency may revise the rule to incorporate suggestions or eliminate problems identified as a result of the analysis. The rule is then published in final form in the Federal Register and becomes effective on the date listed in the notice. It is then incorporated into the government s Code of Federal Regulations, which lists all currently applicable regulations.

WHAT IS NEGOTIATED RULEMAKING?

Negotiated rulemaking is a process which brings together representatives of various interest groups and a federal agency to negotiate the text of a proposed rule. The goal of a negotiated rulemaking proceeding is for the committee to reach consensus on the text of a proposed rule.

HOW IS NEGOTIATED RULEMAKING DIFFERENT?

In a negotiated rulemaking proceeding, a well balanced group representing the regulated public, community and public interest groups, state and local governments, joins with a representative of the federal agency in a federally chartered advisory committee to negotiate the text or the outline or concept of a rule before it is published as a proposed rule in the Federal Register. If the committee reaches consensus on the rule then the federal agency can use this consensus as a basis for its proposed rule. The proposed rule is still subject to public comment. If consensus is not reached then the agency proceeds with its normal rulemaking activities.

WHAT ARE THE ADVANTAGES OF NEGOTIATED RULEMAKING?

Federal agencies that have used negotiated rulemaking have identified several advantages to developing a rule by negotiation before notice and comment. The regulatory negotiation process allows the interested, affected parties a more direct input into the drafting of the regulation, thus ensuring that the rule is more sensitive to the needs and limitations of both the parties and the agency. Rules drafted by negotiation have been found to be more pragmatic and more easily implemented at an earlier date, thus providing the public with the benefits of the rule while minimizing the negative impact of a poorly conceived or drafted regulation.

Because the negotiating committee includes representatives of the major groups affected by or interested in the rule, the number of public comments is reduced. The tenor of public comment is more moderate. Fewer substantive changes are required before the rule is made final. The committee can draw on the diverse experience and creative skills of the members to 22 address problems encountered in writing a regulation. Often the group together can propose solutions to difficult problems that no one member could have thought of or believed would work.

HOW ARE RULES SELECTED FOR NEGOTIATED RULEMAKING?

The Negotiated Rulemaking Act of 1996 suggests a number of criteria ( see attachment) that a rule should meet to be a candidate for negotiated rulemaking. Generally, the federal agency conducts an internal assessment to determine its own interest in negotiating a rule. If it determines that a negotiation is a possibility, the agency retains a neutral third party facilitator/ mediator to conduct a more rigorous assessment of the feasibility. This assessment involves interviews of agency management and staff and conversations with a wide range of organizations and individuals who might be affected by the rule. The facilitator will analyze the information gained about the issues and the parties and make recommendations to the agency regarding the feasibility of negotiating the rule and suggestions for designing the negotiation process. The agency considers the results of the feasibility study and makes a decision whether to proceed.

HOW DOES THE PROCESS WORK?

The federal agency establishes a formal advisory committee under the Federal Advisory Committee Act. A balanced mix of people representing the range of affected parties is invited by the agency to participate. Generally committees are composed of between 12 and 25 members representing both the public and private sectors. A neutral facilitator or mediator is used to manage its meetings and assist the parties in discussions and reaching an agreement.

Meetings are announced in the Federal Register ( and sometimes in local or trade press) and are open to observation by members of the public. The number of meetings held depends on how complicated the rule is to draft, how much controversy there is amongst the committee members, and what the deadline is for the rule to be published and implemented.

Generally only the committee members speak during the meetings, although provisions are made for input by members of the audience. Caucuses can be called by committee members to speak with their constituency or with other members of the committee, caucuses may or may not be open to the public observers. Workgroups can be formed by committees to work on subsets of the issues posed by the rule.

Decisions are generally made by consensus, not by majority vote. The Committee discusses and decides upon their own definition of consensus prior to the start of its deliberations. Often the consensus is generally defined as an agreement by all parties that they can live with the provisions of the rule when taken as a whole package.

If consensus is reached, the agency will use it as a basis for their proposed rule. Committee members agree to support the rule as proposed if there are no substantive changes from the consensus agreement.

FOR ADDITIONAL INFORMATION ON REGULATORY NEGOTIATION: Negotiated Rulemaking Sourcebook, 1995, Administrative Conference of the US; written and edited by David Pritzker and Deborah Dalton. Available from Deborah Dalton ( dalton. deborah@ epa. gov)

23 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 SELECTION CRITERIA for NEGOTIATED RULEMAKING It is important to screen potential rulemakings to identify instances where negotiation of the rule has a high probability of success. The Negotiated Rulemaking Act of 1996 and past EPA experience suggest the following criteria to screen and select appropriate items. An item need not meet all of these criteria to be qualified as a candidate.

Criteria for the Item o The proposal should require the resolution of a limited number of interdependent or related issues, none of which involve fundamental questions of value, or extremely controversial national policy.

o The policy implications of the issues to be resolved are more or less limited programmatically, i. e., the rulemaking will not establish binding precedents in program areas not encompassed by the negotiations.

o There must be a sufficiently well developed factual base to permit meaningful discussion and resolution of the issues.

o There should be several ways in which the issues can be resolved.

o There should be a firm deadline imposed upon the negotiations by EPA due to some statutory, judicial or programmatic mechanism. The deadline should provide adequate time for negotiation of the issues.

o Any ongoing litigation does not inhibit the parties' willingness or ability to engage in genuine give and take.

Criteria for the Participants o Those participants interested in or affected by the outcome of the development process should be readily identifiable and relatively few in number. Participants should be able to represent and reflect the interests of their constituencies.

o The parties should have some common goals. They should be in good faith about wanting to participate in negotiations. They should feel themselves as likely, if not more likely, to achieve their overall goals using negotiations as they would through traditional rulemaking.

o Some of the parties should have common positions on one or more of the issues to be resolved which might serve as a basis for agreement during the course of negotiations.

o The parties should view themselves as having an ongoing relationship with the Agency beyond the item under consideration.

24 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 APPENDIX B: LIST OF INTERVIEWEES Mr. Paul Ackerman Piper Rudnick, LLP 1200 19th Street, N. W. Washington, DC 20036 All Appropriate Inquiry Workgroup Patricia Overmeyer, Chair U. S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N. W. Washington, DC 20460 Ms. Bonnie Barnett Drinker, Biddle and Reath, LLP Eighteenth and Cherry Streets Philadelphia, PA 19103 Ms. Kathy Blaha Trust for Public Land 660 Pennsylvania Ave. S. E. Suite 401 Washington, DC 20003 Ms. Janet Bollman Gela River Department of Environmental Quality Phoenix, AZ Mr. Karl Bourdeau Beveridge and Diamond 1350 Eye Street N. W.   Suite 700 Washington, DC 20005 Ms. Carol Bowers American Society of Civil Engineers 1015 15th Street N. W.   Suite 600 Washington, DC 20005 Mr. Chris Boyle Drinker, Biddle and Reath, LLP Eighteenth and Cherry Streets Philadelphia, PA 19103 Mr. Kenneth Brown National Association of Local Government Environmental Professionals ( NALGEP) 1350 New York Ave. N. W. Suite 1100 Washington, DC 20005 Mr. Robert Colangelo National Brownfields Association 5440 N. Cumberland Ave., Suite 238 Chicago, IL 60656 1452 Mr. Grant Cope US Public Interest Research Group 218 D Street S. E. Washington, DC 20003 Mr. Tom Crause Illinois EPA 1021 N. Grand Avenue East Springfield, IL 62702 Mr. Andy Darrell Environmental Defense New York, NY Mr. Todd Davis Hemisphere Corporation 25825 Science Park Drive, Suite 265 Cleveland, OH 44122 25 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Mr. DeWitt National Association of Industrial and Office Parks 2201 Cooperative Way, 3rd Floor Herndon, VA 20171 Ms. Dionne Farris Partnership for Sustainable Brownfields Redevelopment Washington, DC Mr. Jack Fersco National Association of Industrial and Office Parks 2201 Cooperative Way, 3rd Floor Herndon, VA 20171 Mr. Rob Fox Manko, Gold, Katcher, and Fox 401 City Avenue, Suite 500 Bala Cynwyd, PA 19004 Mr. Don Green U. S. HUD Washington, DC Mr. John Hancock Environmental Director Pomo of Upper Lake 375 East Highway 20, Suite 1 Upper Lake, CA 95485 Mr. Rob Hazelton Dominion Environmental Virginia Mr. Evan Henry Bank of America 44820 Irvine Blvd. Irvine, CA 92660 Mr. Steven Hirsch U. S. Chamber of Commerce 1615 H Street N. W. Washington, DC 20062 2000 Ms. Cathie Hutchins National Association of Attorneys General 750 First Street, N. E. Suite 1100 Washington, DC 20002 Mr. James Johnston PMK Group 65 Jackson Drive Cranford, NJ 07016 Mr. Karl Kalbacher Maryland Department of Environment 2500 Broening Highway Baltimore, MD 21224 Ms. Julie Kilgore Wasatch Environmental 2410 W. California Avenue Salt Lake City, UT 84104 Mr. Ken Kloo NJ Dept. of Environmental Protection P. O. Box 407 Trenton, NJ 08625 0407 Mr. David E. Lourie, P. E. ASFE Codes & Standards Lourie Consultants 3924 Haddon Street Metairie, LA 70002 3011 Ms. Peggy Lynch Solutions Realty Richmond, VA 26 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Ms. Mary Matta National Oceanic and Atmospheric Administration Seattle, Washington Mr. Kevin Matthews AIG 1801 K Street N. W. Suite 404L Washington, DC 20006 Ms. Deborah McKinnon Mortgage Bankers Association 1919 Pennsylvania Ave., N. W. Washington, DC 20006 Mr. Richard Meyer Freddie Mac 8100 Jones Branch Drive ( MS# 4BE) McLean, VA 22102 Mr. Michael Mittelholzer National Association of Homebuilders 1201 15th Street N. W. Washington, DC 20005 Ms. Linda Morgan OENJ Cherokee Corporation 251 Jersey Gardens Blvd. East Elizabeth, NJ 07201 Mr. Tahir Naseem Mortgage Bankers Association 1919 Pennsylvania Ave., N. W. Washington, DC 20006 Ms. Mary O Rourke Fitch Ratings New York, NY Ms. Lindene Patton Zurich North America 601 West 26th Street New York, NY 10001 Mr. Michael Paulukiewicz Urban Land Institute Washington, DC Mr. Ken Peters Freddie Mac 8100 Jones Branch Drive ( MS# 4BE) McLean, VA 22102 Mr. Roger Platt National Real Estate Roundtable 1420 New York Ave. N. W.   Suite 1100 Washington, DC 20005 Ms. Christine Reimer National Ground Water Association 601 Dempsey Road Westerville, OH 43081 8978 Ms. Judy Sheahan U. S. Conference of Mayors 1620 Eye Street N. W. Washington, DC 20006 Mr. Joseph Schilling International City/ County Management Association 777 North Capitol Street, N. E. Washington, DC 20002 4201 Mr. Gene Smary American Bar Association 740 15th Street, N. W. Washington, DC 20005 1019 27 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Mr. Daniel Smith ASTM International 100 Barharbor Drive West Conshohocken, PA 19428 Mr. Jay Spector National Association of Industrial and Office Parks 2201 Cooperative Way, 3rd Floor Herndon, VA 20171 Mr. Ed Stromberg U. S. Department of Housing and Urban Development 451 Seventh Street, S. W. Rm 8134 Washington, DC 20410 Ms. Samara Swanston Sierra Club FDR Station New York, NY 10150 Mr. Craig Thomas Freddie Mac 8100 Jones Branch Drive ( MS# 4BE) McLean, VA 22102 Mr. Barry Trilling National Association of Industrial and Office Parks 2201 Cooperative Way, 3rd Floor Herndon, VA 20171 Ms. Danielle Miller Wagner International City/ County Management Association 777 North Capitol Street, N. E. Washington, DC 20002 4201 Mr. Matthew Ward NALGEP 1350 New York Ave. N. W. Suite 1100 Washington, DC 20005 Ms. Karen Wardzinski U. S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 0001 Ms. Sara Beth Watson American Bar Association 740 15th Street, N. W. Washington, DC 20005 1019 Mr. William Weissman Piper Rudnick, LLP 1200 19th Street, N. W. Washington, DC 20036 Mr. Marshall Williams Marshall Williams, Inc. Woodbury, TN Ms. Julie Wolk US Public Interest Research Group 218 D Street S. E. Washington, DC 20003 Contacted but not interested in participating Mr. Bill Allayaud Sierra Club 1414 K Street Sacramento, CA 95814 Ms. Kate Bicknell Small Growth America 1100 17th Street N. W.   10th Floor Washington, DC 20036 28 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002 Mr. Anthony Edwards National Association of Real Estate Investment Trusts 1875 Eye Street, N. W. Washington, DC 20006 Mr. Martin Harris National Association of Counties Washington, DC Mr. Joel Hirshhorn National Governors Association 444 North Capitol Street Washington, DC 20001 1512 Mr. Robert Johnson Wildlife Habitat Council 1010 Wayne Ave. Suite 920 Silver Spring, MD 20910 Ms. Carol Leftwich ECOS 444 N Capitol St, NW Suite 445 Washington, DC 20001 29 All Appropriate Inquiry Negotiated Rulemaking Convening Assessment Contract No. 68 W 99 010 TO # 122 Susan Podziba & Associates December 17, 2002


[Federal Register Volume 88, Number 24 (Monday, February 6, 2023)]
[Rules and Regulations]
[Pages 7572-7575]
[FR Doc No: 2023-02502]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2023-0159; Project Identifier MCAI-2023-00046-R;
Amendment 39-22326; AD 2023-03-01]
RIN 2120-AA64

Airworthiness Directives; Airbus Helicopters Deutschland GmbH
(AHD) Helicopters

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: The FAA is adopting a new airworthiness directive (AD) for
Airbus Helicopters Deutschland GmbH (AHD) Model BO-105A, BO-105C, BO-
105S, BO-105LS A-1, BO-105LS A-3, MBB-BK 117 A-1, MBB-BK 117 A-3, MBB-
BK 117 A-4, MBB-BK 117 B-1, MBB-BK 117 B-2, MBB-BK 117 C-1, MBB-BK 117
C-2, and MBB-BK 117 D-2 helicopters. This AD was prompted by a report
of a missing main rotor swashplate (swashplate) inner ring (inner
ring). This AD requires inspecting for the presence of the inner ring
and, depending on the results, accomplishing additional actions. This
AD also prohibits installing an affected swashplate unless it is
determined that the inner ring is installed, as specified in a European
Union Aviation Safety Agency (EASA) AD, which is incorporated by
reference. The FAA is issuing this AD to address the unsafe condition
on these products.

DATES: This AD is effective February 21, 2023.
    The Director of the Federal Register approved the incorporation by
reference of a certain publication listed in this AD as of February 21,
2023.
    The FAA must receive comments on this AD by March 23, 2023.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to regulations.gov. Follow
the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     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: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    AD Docket: You may examine the AD docket at regulations.gov under
Docket No. FAA-2023-0159; or in person at Docket Operations between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD
docket contains this final rule, any comments received, and other
information. The address for Docket Operations is listed above.
    Material Incorporated by Reference:
     For EASA material that is incorporated by reference in
this final rule, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne,
Germany; telephone +49 221 8999 000; email [email protected]; internet
easa.europa.eu. You may find the EASA material on the EASA website at
ad.easa.europa.eu.
     You may view this material at the FAA, Office of the
Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321,
Fort Worth, TX 76177. For information on the availability of this
material at the FAA, call<PHONE_NUMBER>. It is also available at
regulations.gov under Docket No. FAA-2023-0159.
    Other Related Service Information: For Airbus Helicopters service
information that is identified in this final rule, contact Airbus
Helicopters, 2701 North Forum Drive, Grand Prairie, TX 75052; telephone
(972) 641-0000 or<PHONE_NUMBER>; fax<PHONE_NUMBER>; or at https://www.airbus.com/helicopters/services/technical-support.html. You may
also view this service information at the FAA contact information under
Material Incorporated by Reference above.

FOR FURTHER INFORMATION CONTACT: Dan McCully, Program Manager, COS
Program Management Section, Operational Safety Branch, Compliance &
Airworthiness Division, FAA, 1701 Columbia Ave., Mail Stop: ACO,
College Park, GA 30337; telephone<PHONE_NUMBER>; email
[email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites you to send any written data, views, or arguments
about this final rule. Send your comments to an address listed under
ADDRESSES. Include ``Docket No. FAA-2023-0159; Project Identifier MCAI-
2023-00046-R'' at the beginning of your comments. The most helpful
comments reference a specific portion of the final rule, explain the
reason for any recommended change, and include supporting data. The FAA
will consider all comments received by the closing date and may amend
this final rule because of those comments.

    Except for Confidential Business Information (CBI) as described in
the following paragraph, and other information as described in 14 CFR
11.35, the FAA will post all comments received, without change, to
regulations.gov, including any personal information you provide. The
agency will also post a report summarizing each substantive verbal
contact received about this final rule.

Confidential Business Information

    CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this AD contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, and that is relevant or responsive to
this AD, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission containing
CBI as ``PROPIN.'' The FAA will treat such marked submissions as
confidential under the FOIA, and they will not be placed in the public
docket of this AD. Submissions containing CBI should be sent to Dan
McCully, Program Manager, COS Program Management Section, Operational
Safety Branch, Compliance & Airworthiness Division, FAA, 1701 Columbia
Ave., Mail Stop: ACO, College Park, GA 30337; telephone<PHONE_NUMBER>;
email [email protected]. Any commentary that the FAA receives
that is not specifically designated as CBI will be placed in the public
docket for this rulemaking.

Background

    EASA, which is the Technical Agent for the Member States of the
European Union, has issued EASA Emergency AD 2023-0006-E, dated January
12, 2023 (EASA AD 2023-0006-E), to correct an unsafe condition on
Airbus Helicopters Deutschland GmbH (AHD) Model BO105 A, BO105 C, BO105
D, BO105 S, BO105 LS A-1, BO105 LS A-3, MBB-BK117 A-1, MBB-BK117 A-3,
MBB-BK117 A-4, MBB-BK117 B-1, MBB-BK117 B-2, MBB-BK117 C-1, MBB-BK117
C-2, and MBB-BK117 D-2 helicopters.
    This AD was prompted by a report of a missing inner ring on a Model
MBB-BK 117 C-2 helicopter; because the other model helicopters are
subject to the same unsafe condition due to design similarity of the
swashplate, they are included in this AD's applicability. The FAA is
issuing this AD to detect a missing inner ring, which if not addressed,
could result in loss of main rotor control and subsequent loss of
control of the helicopter.
    You may examine EASA AD 2023-0006-E in the AD docket at
regulations.gov under Docket No. FAA-2023-0159.

Related Service Information Under 1 CFR Part 51

    EASA AD 2023-0006-E requires inspecting affected swashplates to
determine if the inner ring is installed and, if the inner ring is not
installed or if it cannot be determined if the inner ring is installed,
contacting Airbus Helicopters Deutschland GmbH (AHD) to obtain approved
instructions and accomplishing those instructions. EASA AD 2023-0006-E
also prohibits installing an affected swashplate unless it is
determined that the inner ring is installed.
    This material is reasonably available because the interested
parties have access to it through their normal course of business or by
the means identified in the ADDRESSES section.

Other Related Service Information

    The FAA reviewed Airbus Helicopters Emergency Alert Service
Bulletin (EASB) BO105-40A-110, EASB BO105LS-40A-15, EASB BO105 LS A-3-
STC-0654/3058-40A-3, EASB MBB-BK117-40A-118, and EASB MBB-BK117-62-32-
0001, each Revision 0 and dated January 11, 2023, and co-published as
one document. This service information specifies procedures for a one-
time visual check for installation of the inner ring. If the inner ring
is not installed or if it is difficult to determine if the inner ring
is installed, this service information specifies contacting Airbus
Helicopters for further instructions before further flight.

FAA's Determination

    These helicopters have been approved by EASA and are approved for
operation in the United States. Pursuant to the FAA's bilateral
agreement with the European Union, EASA, its technical representative,
has notified the FAA of the unsafe condition described in its emergency
AD. The FAA is issuing this AD after evaluating all pertinent
information and determining that the unsafe condition exists and is
likely to exist or develop on other helicopters of these same type
designs.

Requirements of This AD

    This AD requires accomplishing the actions specified in EASA AD
2023-0006-E, described previously, as incorporated by reference, except
for any differences identified as exceptions in the regulatory text of
this AD and except as discussed under ``Differences Between this AD and
the EASA AD.''

Explanation of Required Compliance Information

    In the FAA's ongoing efforts to improve the efficiency of the AD
process, the FAA developed a process to use some civil aviation
authority (CAA) ADs as the primary source of information for compliance
with requirements for corresponding FAA ADs. The FAA has been
coordinating this process with manufacturers and CAAs. As a result,
EASA AD 2023-0006-E is incorporated by reference in this FAA final
rule. This AD, therefore, requires compliance with EASA AD 2023-0006-E
in its entirety through that incorporation, except for any differences
identified as exceptions in the regulatory text of this AD. Using
common terms that are the same as the heading of a particular section
in EASA AD 2023-0006-E does not mean that operators need comply only
with that section. For example, where the AD requirement refers to
``all required actions and compliance times,'' compliance with this AD
requirement is not limited to the section titled ``Required Action(s)
and Compliance Time(s)'' in EASA AD 2023-0006-E. Service information
referenced in EASA AD 2023-0006-E for compliance will be available at
regulations.gov under Docket No. FAA-2023-0159 after this final rule is
published.

Differences Between This AD and the EASA AD

    This AD is considered interim action and further rulemaking may
follow, whereas EASA AD 2023-0006-E is not considered interim action.
EASA AD 2023-0006-E applies to Model BO105 D helicopters, whereas this
AD does not because that model is not FAA type-certificated.
    EASA AD 2023-0006-E requires contacting Airbus Helicopters to
obtain approved instructions and accomplishing those instructions,
whereas this AD requires accomplishing actions in accordance with a
method approved by the FAA, EASA, or Airbus Helicopters Deutschland
GmbH's EASA Design Organization Approval. Alternatively, this AD allows
replacing the swashplate and requires reporting information to Airbus
Helicopters Deutschland GmbH (AHD).

Interim Action

    The FAA considers this AD interim action. If final action is later
identified,

the FAA might consider further rulemaking then.

Justification for Immediate Adoption and Determination of the Effective
Date

    Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5
U.S.C. 551 et seq.) authorizes agencies to dispense with notice and
comment procedures for rules when the agency, for ``good cause,'' finds
that those procedures are ``impracticable, unnecessary, or contrary to
the public interest.'' Under this section, an agency, upon finding good
cause, may issue a final rule without providing notice and seeking
comment prior to issuance. Further, section 553(d) of the APA
authorizes agencies to make rules effective in less than thirty days,
upon a finding of good cause.
    An unsafe condition exists that requires the immediate adoption of
this AD without providing an opportunity for public comments prior to
adoption. The FAA has found that the risk to the flying public
justifies foregoing notice and comment prior to adoption of this rule
because the inner ring is part of the main rotor swashplate, which is
critical to the control of a helicopter. A missing inner ring could
result in loss of main rotor control during any phase of flight without
previous indication. The FAA also has no information pertaining to how
quickly the condition may propagate to failure. In light of this, the
initial inspection must be accomplished before further flight.
Accordingly, notice and opportunity for prior public comment are
impracticable and contrary to the public interest pursuant to 5 U.S.C.
553(b)(3)(B).
    In addition, the FAA finds that good cause exists pursuant to 5
U.S.C. 553(d) for making this amendment effective in less than 30 days,
for the same reasons the FAA found good cause to forego notice and
comment.

Regulatory Flexibility Act

    The requirements of the Regulatory Flexibility Act (RFA) do not
apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt
a rule without prior notice and comment. Because the FAA has determined
that it has good cause to adopt this rule without prior notice and
comment, RFA analysis is not required.

Costs of Compliance

    The FAA estimates that this AD affects 245 helicopters of U.S.
Registry. Labor rates are estimated at $85 per work-hour. Based on
these numbers, the FAA estimates the following costs to comply with
this AD.
    Visually inspecting the swashplate for the presence of the inner
ring takes about 0.5 work-hour for an estimated cost of $43 per
helicopter and $10,535 for the U.S. fleet.
    The actions that may be needed as a result of the inspection could
vary significantly from helicopter to helicopter. The FAA has no data
to determine the costs to accomplish the additional actions or the
number of helicopters that may require those actions. Alternatively,
replacing the swashplate takes about 120 work-hours and parts cost
about $99,537 for an estimated cost of $109,737 per helicopter.
Reporting information to the manufacturer takes about 1 work-hour for
an estimated cost of $85 per helicopter.

Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not
required to respond to, nor shall a person be subject to penalty for
failure to comply with a collection of information subject to the
requirements of the Paperwork Reduction Act unless that collection of
information displays a currently valid OMB Control Number. The OMB
Control Number for this information collection is 2120-0056. Public
reporting for this collection of information is estimated to be
approximately 1 hour per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. All responses to this collection of
information are mandatory. Send comments regarding this burden estimate
or any other aspect of this collection of information, including
suggestions for reducing this burden, to: Information Collection
Clearance Officer, Federal Aviation Administration, 10101 Hillwood
Parkway, Fort Worth, TX 76177-1524.

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.
    The FAA is 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

    This AD will not have federalism implications under Executive Order
13132. This AD will 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, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866, and
    (2) Will not affect intrastate aviation in Alaska.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive:

2023-03-01 Airbus Helicopters Deutschland GmbH (AHD): Amendment 39-
22326; Docket No. FAA-2023-0159; Project Identifier MCAI-2023-00046-
R.

(a) Effective Date

    This airworthiness directive (AD) is effective February 21,
2023.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to Airbus Helicopters Deutschland GmbH (AHD)
Model BO-105A, BO-105C, BO-105S, BO-105LS A-1, BO-105LS A-3
(including those modified by Supplemental Type Certificate
SR00043RD), MBB-BK 117 A-1, MBB-BK 117 A-3, MBB-BK 117 A-4, MBB-BK
117 B-1, MBB-BK 117 B-2, MBB-BK 117 C-1, MBB-BK 117 C-2, and MBB-BK
117 D-2 helicopters, certificated in any category.

    Note 1 to paragraph (c): Helicopters with an MBB-BK117 C-2e
designation are Model MBB-BK117 C-2 helicopters.

(d) Subject

    Joint Aircraft System Component (JASC) Code: 6230, Main Rotor
System.

(e) Unsafe Condition

    This AD was prompted by a report of a missing main rotor
swashplate (swashplate) inner ring (inner ring). The FAA is issuing
this AD to detect a missing inner ring. The unsafe condition, if not
addressed, could result in loss of main rotor control and subsequent
loss of control of the helicopter.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Requirements

    Except as specified in paragraph (h) of this AD: Comply with all
required actions and compliance times specified in, and in
accordance with, European Union Aviation Safety Agency Emergency AD
2023-0006-E, dated January 12, 2023 (EASA AD 2023-0006-E).

(h) Exceptions to EASA AD 2023-0006-E

    (1) Where EASA AD 2023-0006-E refers to its effective date, this
AD requires using the effective date of this AD.
    (2) Where the service information referenced in paragraph (1) of
EASA AD 2023-0006-E specifies that a pilot may check for
installation of the inner ring on the swashplate, this AD requires
that inspection to be accomplished by persons authorized under 14
CFR 43.3.
    (3) Where the service information referenced in paragraph (1) of
EASA AD 2023-0006-E and where paragraph (2) of EASA AD 2023-0006-E
specify contacting AH [Airbus Helicopters] to obtain further
instructions or approved instructions, this AD requires actions done
in accordance with a method approved by the Manager, General
Aviation & Rotorcraft Section, International Validation Branch, FAA;
or EASA; or Airbus Helicopters Deutschland GmbH's EASA Design
Organization Approval (DOA). If approved by the DOA, the approval
must include the DOA-authorized signature. As an option, you may
accomplish the actions identified in paragraphs (h)(3)(i) and (ii)
of this AD.
    (i) Before further flight, replace the affected swashplate.
    (ii) At the applicable compliance time identified in paragraph
(h)(3)(ii)(A) or (B) of this AD, report the inspection results and
describe in detail any other findings, along with the helicopter
model and serial number, swashplate part number, and the following
text: ``EASB BO105-40A-110, BO105LS-40A-15, BO105 LS A-3-STC-0654/
3058-40A-3, MBB-BK117-40A-118, MBB-BK117-62-32-0001'' by email to
[email protected].
    (A) If the inspection in paragraph (1) of EASA AD 2023-0006-E
was done on or after the effective date of this AD: Submit the
report within 10 days after completing paragraph (1) of EASA AD
2023-0006-E.
    (B) If the inspection in paragraph (1) of EASA AD 2023-0006-E
was done before the effective date of this AD: Submit the report
within 10 days after the effective date of this AD.
    (4) This AD does not adopt the Remarks paragraph of EASA AD
2023-0006-E.

(i) Special Flight Permit

    Special flight permits are prohibited.

(j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, International Validation Branch, FAA, has the
authority to approve AMOCs for this AD, if requested using the
procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19,
send your request to your principal inspector or local Flight
Standards District Office, as appropriate. If sending information
directly to the manager of the International Validation Branch, send
it to the attention of the person identified in paragraph (k) of
this AD. Information may be emailed to: [email protected].
    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.

(k) Related Information

    For more information about this AD, contact Dan McCully, Program
Manager, COS Program Management Section, Operational Safety Branch,
Compliance & Airworthiness Division, FAA, 1701 Columbia Ave., Mail
Stop: ACO, College Park, GA 30337; telephone<PHONE_NUMBER>; email
[email protected].

(l) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference of the service information listed in this
paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless this AD specifies otherwise.
    (i) European Union Aviation Safety Agency (EASA) Emergency AD
2023-0006-E, dated January 12, 2023.
    (ii) [Reserved]
    (3) For EASA AD 2023-0006-E, contact EASA, Konrad-Adenauer-Ufer
3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
[email protected]; internet easa.europa.eu. You may find the EASA
material on the EASA website at ad.easa.europa.eu.
    (4) You may view this service information at the FAA, Office of
the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room
6N-321, Fort Worth, TX 76177. For information on the availability of
this material at the FAA, call<PHONE_NUMBER>.
    (5) You may view this material that is incorporated by reference
at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, email
[email protected], or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued on January 31, 2023.
Christina Underwood,
Acting Director, Compliance & Airworthiness Division, Aircraft
Certification Service.
[FR Doc. 2023-02502 Filed 2-2-23; 11:15 am]
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[Federal Register: March 15, 2006 (Volume 71, Number 50)]
[Notices]
[Page 13367]
[DOCID:fr15mr06-73]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP06-251-000]

Gulf South Pipeline Company, LP; Notice of Proposed Changes to
FERC Gas Tariff

March 8, 2006.
    Take notice that on March 1, 2006, Gulf South Pipeline Company, LP
(Gulf South) tendered for filing as part of its Sixth Revised Volume
No. 1 FERC Gas Tariff, the following tariff sheets, to become effective
March 31, 2006.

Second Revised Sheet No. 304
Second Revised Sheet No. 305
Second Revised Sheet No. 305A

    Gulf South states that copies of this filing have been served upon
Gulf South's customers, state commissions and other interested parties.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed in accordance with the provisions of
Section 154.210 of the Commission's regulations (18 CFR 154.210).
Anyone filing an intervention or protest must serve a copy of that
document on the Applicant. Anyone filing an intervention or protest on
or before the intervention or protest date need not serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Magalie R. Salas,
Secretary.
 [FR Doc. E6-3674 Filed 3-14-06; 8:45 am]

BILLING CODE 6717-01-P