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i II Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004
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Contents Federal Register Vol. 69, No. 242
Friday, December 17, 2004
Agricultural Research Service Employee Benefits Security Administration NOTICES RULES Agency information collection activities; proposals, Group health plans; access, portability, and renewability submissions, and approvals, 75501–75502 requirements: Mental health parity requirements; sunset date extended, Agriculture Department 75797–75799 See Agricultural Research Service See Farm Service Agency Employment Standards Administration See Forest Service NOTICES See Grain Inspection, Packers and Stockyards Minimum wages for Federal and federally-assisted Administration construction; general wage determination decisions, See Rural Housing Service 75568–75569
Blind or Severely Disabled, Committee for Purchase From Energy Department People Who Are See Energy Efficiency and Renewable Energy Office See Committee for Purchase From People Who Are Blind See Federal Energy Regulatory Commission or Severely Disabled Energy Efficiency and Renewable Energy Office Centers for Medicare & Medicaid Services NOTICES See Inspector General Office, Health and Human Services Consumer products; energy conservation program: Department American Water Heater Co.; waiver from commercial water heaters test procedure, 75518–75521 Children and Families Administration NOTICES Environmental Protection Agency Agency information collection activities; proposals, RULES submissions, and approvals, 75548–75551 Air quality implementation plans; approval and promulgation; various States: Coast Guard Kentucky, 75473–75478 RULES Missouri, 75478–75481 Drawbridge operations: Texas, 75478 Virginia, 75472 Reporting and recordkeeping requirements, 75472–75473 PROPOSED RULES PROPOSED RULES Drawbridge operations: Air quality implementation plans; approval and New Jersey, 75493–75494 promulgation; various States: Kentucky, 75495 Commerce Department Missouri, 75495 See International Trade Administration Toxic substances: See National Institute of Standards and Technology Enzymes and proteins; nomenclature inventory, 75496 NOTICES NOTICES Agency information collection activities; proposals, Agency information collection activities; proposals, submissions, and approvals, 75507–75508 submissions, and approvals, 75532–75535 Environmental statements; availability, etc.: Committee for Purchase From People Who Are Blind or Agency statements— Severely Disabled Comment availability, 75536 Weekly receipts, 75535–75536 NOTICES Superfund; response and remedial actions, proposed Procurement list; additions and deletions, 75505–75507 settlements, etc.: Sulphur Bank Mercury Mine Site, CA, 75536–75537 Committee for the Implementation of Textile Agreements Toxic and hazardous substances control: NOTICES New chemicals— Export visa requirements; certification, waivers, etc.: Receipt and status information, 75537–75541 Various countries, 75516 Water pollution control: Textile and apparel categories: National Pollutant Discharge Elimination System— Chinese imports; safeguard actions, 75516–75517 Massachusetts, New Hampshire, and Massachusetts Indian country lands; groundwater remediation Defense Department and miscellaneous water discharge activities; NOTICES general permits, 75541 National Geospatial-Intelligence Agency: Water quality criteria: Aeronautical information publications; removal from Aquatic life criteria document— public sale and distribution, 75517–75518 Selenium, 75541–75546
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Farm Service Agency Fish and Wildlife Service NOTICES PROPOSED RULES Agency information collection activities; proposals, Endangered and threatened species: submissions, and approvals, 75503 Critical habitat designations— Western snowy plover; Pacific Coast population, Federal Aviation Administration 75607–75771 RULES NOTICES Class E airspace, 75454–75455 Environmental statements; availability, etc.: PROPOSED RULES Incidental take permits— Class E airspace, 75490–75492 Lower Colorado River, AZ, CA, and NV; southwestern NOTICES willow flycatcher, etc.; habitat conservation Advisory circulars; availability, etc.: program, 75556–75558 Identification and registration marking, 75587–75588 Environmental statements; availability, etc.: Foreign Assets Control Office Panama City-Bay County International Airport, FL; RULES relocation, 75588 Cuban Assets, Sudanese Sanctions and Iranian Transactions Exemption petitions; summary and disposition, 75588– regulations: 75591 Publication activities; general licenses, 75468–75472 Passenger facility charges; applications, etc.: Durango-La Plata County Airport, CO, 75591–75592 Forest Service Lafayette Regional Airport, LA, 75592–75593 NOTICES Monterey Peninsula Airport, CA, 75593 Environmental statements; availability, etc.: Telluride Regional Airport, CO, 75593–75594 Santa Fe County, NM; Buckman Water Diversion Project, Wayne County Airport Authority, MI, et al., 75594–75596 75560–75561 Environmental statements; notice of intent: Federal Emergency Management Agency Hoosier National Forest, IN, 75503–75504 RULES Flood elevation determinations: General Services Administration Georgia, 75483–75484 NOTICES Pennsylvania and Puerto Rico, 75484–75486 Federal travel: Flood insurance; communities eligible for sale: Per diem— Ohio, 75481–75483 Various States; maximum rates; correction, 75547 PROPOSED RULES Flood elevation determinations: North Carolina, 75496–75499 Government Ethics Office Vermont, 75499–75500 NOTICES NOTICES Agency information collection activities; proposals, Agency information collection activities; proposals, submissions, and approvals, 75547–75548 submissions, and approvals, 75554–75555 Disaster and emergency areas: Grain Inspection, Packers and Stockyards Administration Alaska, 75555 NOTICES Florida, 75555 Grain inspection: Bean standards; special grade designation ‘‘off-color’’; Federal Energy Regulatory Commission proposed removal, 75504–75505 NOTICES Complaints filed: Health and Human Services Department ANP Funding I, LLC, et al., 75526 See Children and Families Administration Electric rate and corporate regulation filings, 75526–75532 See Inspector General Office, Health and Human Services Meetings: Department KeySpan LNG, L.P., 75532 Klamath Hydroelectric Project, 75532 Homeland Security Department Applications, hearings, determinations, etc.: See Coast Guard American Electric Power Service Corp., 75521 See Federal Emergency Management Agency ANR Pipeline Co., 75521 Dominion Cove Point LNG, LP, 75522 Housing and Urban Development Department El Paso Merchant Energy - Petroleum Co., et al., 75522 RULES Maritimes & Northeast Pipeline, L.L.C., 75522–75523 Mortgage and loan insurance programs: Northern Natural Gas Co., 75523 Federal Housing Administration Credit Watch Pacific Gas & Electric Co., 75523–75524 Termination Initiative; revisions, 75801–75809 Southern LNG Inc., 75524 PROPOSED RULES TransColorado Gas Transmission Co., 75524–75525 FHA programs; introduction: Transcontinental Gas Pipe Line Corp., 75525–75526 Multifamily accelerated processing; lender quality assurance enforcement, 75811–75818 Federal Reserve System NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Agency information collection activities; proposals, Homeless assistance; excess and surplus Federal submissions, and approvals, 75546–75547 properties, 75555–75556
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Inspector General Office, Health and Human Services Minerals Management Service Department NOTICES NOTICES Agency information collection activities; proposals, Program exclusions; list, 75551–75554 submissions, and approvals, 75562–75564
Interior Department National Highway Traffic Safety Administration See Fish and Wildlife Service RULES See Land Management Bureau Motor vehicle safety standards: See Minerals Management Service Hydraulic and electric brake systems, 75486–75489 See National Park Service NOTICES See Reclamation Bureau Agency information collection activities; proposals, submissions, and approvals, 75597 Internal Revenue Service RULES Income taxes: National Institute of Standards and Technology S corporation securities; prohibited allocations, 75455– NOTICES 75468 Standards and conformity assessment; U.S.-China PROPOSED RULES workshop; technical input request, 75515–75516 Income taxes: S corporation securities; prohibited allocations, 75492– National Park Service 75493 NOTICES NOTICES Agency information collection activities; proposals, Environmental statements; availability, etc.: submissions, and approvals, 75604–75605 Guadalupe Mountains National Park and Big Bend National Park, TX and Carlsbad Caverns National Park, NM; fire management plans, 75564 International Trade Administration Petrified Forest National Park, AZ; general management NOTICES plan revision, 75565 Antidumping: Saint Croix National Scenic Riverway, WI; Arrowhead- Brake rotors from— Weston Transmission Line Right-of-Way Crossing, China, 75508–75511 75565–75566 Circular welded carbon quality line pipe from— Environmental statements; notice of intent: China, 75511 Fort Raleigh National Historic Site, NC; general Individually quick frozen red raspberries from— management plan, 75566 Chile, 75511–75513 George Washington Birthplace National Monument, VA; Countervailing duties: general management plan, 75566–75567 Stainless steel sheet and strip in coils from— Wind Cave National Park, SD; elk management plan, Korea, 75513–75515 75567–75568
International Trade Commission NOTICES National Science Foundation Import investigations: NOTICES Sugar from— Meetings: Various countries, 75568 NSF-NASA-Astronomy and Astrophysics Advisory Committee, 75569–75570 Labor Department See Employee Benefits Security Administration Nuclear Regulatory Commission See Employment Standards Administration NOTICES Committees; establishment, renewal, termination, etc.: Land Management Bureau Licensing Support System Network Advisory Review NOTICES Panel, 75570 Coal leases, exploration licenses, etc.: Reports and guidance documents; availability, etc.: Wyoming, 75558 Evaluation of loss of offsite power events at nuclear Environmental statements; availability, etc.: power plants: 1986-2003; comment request, 75570– Rawlins Resource Management Plan, WY, 75558–75560 75571 Santa Fe County, NM; Buckman Water Diversion Project, 75560–75561 Personnel Management Office Meetings: Pinedale Anticline Working Group task groups, 75561 RULES Resource Advisory Councils— Pay under General Schedule: Northwest California, 75561 Locality pay areas; adjustments, 75451–75453
Maritime Administration Railroad Retirement Board NOTICES NOTICES Agency information collection activities; proposals, Agency information collection activities; proposals, submissions, and approvals, 75596–75597 submissions, and approvals, 75571
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Reclamation Bureau Textile Agreements Implementation Committee NOTICES See Committee for the Implementation of Textile Environmental statements; availability, etc.: Agreements Incidental take permits— Lower Colorado River, AZ, CA, and NV; southwestern Transportation Department willow flycatcher, etc.; habitat conservation See Federal Aviation Administration program, 75556–75558 See Maritime Administration See National Highway Traffic Safety Administration Rural Housing Service See Surface Transportation Board RULES See Transportation Statistics Bureau Multi-family housing programs: Direct multi-family housing loans and grants Transportation Statistics Bureau Correction, 75454 NOTICES Securities and Exchange Commission Agency information collection activities; proposals, PROPOSED RULES submissions, and approvals, 75599–75604 Securities: Securities offerings (Regulation M); anti-manipulation Treasury Department rules, 75773–75795 See Foreign Assets Control Office NOTICES See Internal Revenue Service Securities: NOTICES Suspension of trading— Boycotts, international: Absolute Health & Fitness, Inc., 75571 Countries requiring cooperation; list, 75604 Aimsi Technologies, Inc., 75572 Self-regulatory organizations; proposed rule changes: Boston Stock Exchange, Inc., 75572–75573 Separate Parts In This Issue Chicago Board Options Exchange, Inc., 75573–75576 International Securities Exchange, Inc., 75576–75578 Part II National Association of Securities Dealers, Inc., 75578– Interior Department, Fish and Wildlife Service, 75607– 75579 75771 New York Stock Exchange, Inc., 75579–75580 Pacific Exchange, Inc., 75581–75582 Part III Philadelphia Stock Exchange, Inc., 75582–75586 Securities and Exchange Commission, 75773–75795 Small Business Administration NOTICES Part IV Disaster loan areas: Labor Department, Employee Benefits Security North Carolina, 75586 Administration, 75797–75799
State Department Part V NOTICES Housing and Urban Development Department, 75801–75809 Foreign terrorists and terrorist organizations; designation: Al Manar, 75587 Part VI Jam’at al Tawhid wa’al-Jihad et al., 75587 Housing and Urban Development Department, 75811–75818 Libyan Islamic Fighting Group et al., 75587 Surface Transportation Board NOTICES Reader Aids Motor carriers: Consult the Reader Aids section at the end of this issue for Collective-activities agreements; periodic review phone numbers, online resources, finding aids, reminders, proceeding; comment request, 75597–75598 and notice of recently enacted public laws. Rail carriers: To subscribe to the Federal Register Table of Contents Control exemptions— LISTSERV electronic mailing list, go to http:// Broe, Patrick D., et al., 75598–75599 listserv.access.gpo.gov and select Online mailing list Railroad operation, acquisition, construction, etc.: archives, FEDREGTOC-L, Join or leave the list (or change CSX Transportation, Inc., 75599 settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
5 CFR 531...... 75451 7 CFR 1806...... 75454 1822...... 75454 1902...... 75454 1925...... 75454 1930...... 75454 1940...... 75454 1942...... 75454 1944...... 75454 1951...... 75454 1955...... 75454 1956...... 75454 1965...... 75454 3560...... 75454 3565...... 75454 14 CFR 71...... 75454 Proposed Rules: 71 (2 documents) ...... 75490, 75491 17 CFR Proposed Rules: 228...... 75774 229...... 75774 230...... 75774 240...... 75774 242...... 75774 24 CFR 202...... 75802 Proposed Rules: 200...... 75812 26 CFR 1...... 75455 Proposed Rules: 1...... 75492 29 CFR 2590...... 75798 31 CFR 515...... 75468 538...... 75468 560...... 75468 33 CFR 117...... 75472 Proposed Rules: 117...... 75493 40 CFR 9...... 75472 52 (3 documents) ...... 75473, 75478 70...... 75478 Proposed Rules: 52 (2 documents) ...... 75495 70...... 75495 720...... 75496 44 CFR 64...... 75481 65...... 75483 67...... 75484 Proposed Rules: 67 (2 documents) ...... 75496, 75499 49 CFR 571...... 75486 50 CFR Proposed Rules: 17...... 75608
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Rules and Regulations Federal Register Vol. 69, No. 242
Friday, December 17, 2004
This section of the FEDERAL REGISTER consists of all locations in the employment interchange measure of at contains regulatory documents having general contiguous United States that are not least 7.5 percent. applicability and legal effect, most of which part of one of the 31 separate 2. For adjacent counties that are not are keyed to and codified in the Code of metropolitan locality pay areas. part of a multi-county MSA or CSA: To Federal Regulations, which is published under Section 5304(f) of title 5, United be included in an adjacent locality pay 50 titles pursuant to 44 U.S.C. 1510. States Code, authorizes the President’s area, an adjacent county that is The Code of Federal Regulations is sold by Pay Agent (the Secretary of Labor, the currently in the RUS locality pay area the Superintendent of Documents. Prices of Director of the Office of Management must have at least 400 GS employees new books are listed in the first FEDERAL and Budget (OMB), and the Director of and an employment interchange REGISTER issue of each week. the Office of Personnel Management measure of at least 7.5 percent. (OPM)) to determine locality pay areas. 3. For Federal facilities that cross The boundaries of locality pay areas locality pay area boundaries: To be OFFICE OF PERSONNEL must be based on appropriate factors, included in an adjacent locality pay MANAGEMENT which may include local labor market area, that portion of a Federal facility patterns, commuting patterns, and the outside of a higher-paying locality pay 5 CFR Part 531 practices of other employers. The Pay area must have at least 750 GS RIN 3206–AJ45 Agent must give thorough consideration employees, the duty stations of the to the views and recommendations of majority of those employees must be General Schedule Locality Pay Areas the Federal Salary Council, a body within 10 miles of the separate locality AGENCY: Office of Personnel composed of experts in the fields of pay area, and a significant number of Management. labor relations and pay policy and those employees must commute to work representatives of Federal employee from the higher-paying locality pay area. ACTION: Final rule. organizations. The President appoints The Council also recommended and SUMMARY: The Office of Personnel the members of the Federal Salary the Pay Agent is adopting the rule that Management is issuing final regulations Council, which submits annual any county (or partial county in the case on behalf of the President’s Pay Agent recommendations to the President’s Pay of portions of York County, ME) to link the definitions of General Agent about the locality pay program. currently included in a metropolitan Schedule locality pay area boundaries to On October 28, 2003, the Council locality pay area will be retained in the the geographic scope of the new recommended that the Pay Agent adopt locality pay area if the county or partial metropolitan statistical area definitions new metropolitan statistical areas county has an employment interchange established by the Office of Management established by OMB as the basis for measure of 15 percent or more with the and Budget. This regulation also defining locality pay areas and new area covered by the new MSA or CSA establishes new criteria for evaluating criteria for evaluating adjacent areas for definition. ‘‘Employment interchange areas adjacent to locality pay areas for inclusion in the locality pay area. The measure’’ is defined by OMB as ‘‘the inclusion in the pay area. The planned changes in locality pay area sum of the percentage of employed regulations retain all of the existing boundaries based on the Council’s residents of the smaller entity who work locality pay areas, which are expanded recommendations were published in the in the larger entity and the percentage to include a number of additional Federal Register on September 22, 2004, of the employment in the smaller entity locations. and the Pay Agent reviewed comments that is accounted for by workers who received through November 8, 2004, the reside in the larger entity.’’ DATES: Effective date: December 17, end of the comment period. Noting the disparity between Federal 2004. Based on the Council’s and non-Federal pay levels in the FOR FURTHER INFORMATION CONTACT: recommendations, the Pay Agent is Kansas City, St. Louis, and Orlando Allan Hearne, (202) 606–2838; FAX: issuing final regulations that use locality pay areas as compared to the (202) 606–4264; e-mail: pay- county-based Metropolitan Statistical disparity in the RUS locality pay area, [email protected]. Area (MSA) and Combined Statistical the Council recommended that the Pay SUPPLEMENTARY INFORMATION: Section Area (CSA) definitions established by Agent discontinue these three locality 5304 of title 5, United States Code, OMB as the basis for defining GS pay areas. The Pay Agent tentatively authorizes locality pay for General locality pay areas. MSA and CSA agreed to this change in its 2003 report Schedule (GS) employees with duty definitions can be found at http:// to the President. Upon further review, stations in the contiguous United States www.whitehouse.gov/omb/bulletins/ however, the Pay Agent determined that and the District of Columbia. By law, fy04/b04–03.html. it would be advisable to continue to locality pay is set by comparing GS pay The Council also recommended and monitor the disparity between Federal rates with non-Federal pay rates for the the Pay Agent is adopting new criteria and non-Federal pay levels in the same levels of work in each locality pay for evaluating adjacent areas for Kansas City, St. Louis, and Orlando area. Non-Federal pay levels are inclusion in a locality pay area. The areas before determining whether those estimated by means of salary surveys criteria are: areas should be discontinued. The Pay conducted by the Bureau of Labor 1. For adjacent MSAs and CSAs: To Agent asked the Federal Salary Council Statistics (BLS). Currently, there are 32 be included in an adjacent locality pay to review this matter. In its locality pay areas: 31 separate area, an adjacent MSA or CSA currently recommendation letter of October 21, metropolitan locality pay areas and a in the RUS locality pay area must have 2004, the Council concluded that these Rest of U.S. (RUS) locality pay area that at least 1,500 GS employees and an three areas should be discontinued in
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2006. OPM currently intends to publish criterion for evaluating areas or that the Federal Salary Council noted that a proposed rule on behalf of the Pay provisions should be allowed for the York-Hanover-Gettysburg, PA CSA Agent next year to implement this exceptions if a strong rationale exists. now meets the MSA/CSA criteria to be recommendation of the Federal Salary The Pay Agent agrees with the Federal included in the Washington-Baltimore Council. Salary Council that the number of GS locality pay area. The Council employees in the area under Impact and Implementation recommended that the Pay Agent add consideration is an important factor in the York area to the Washington- Overall, the changes in locality pay assessing areas and defers to the Baltimore locality pay area as part of area boundaries move about 17,000 GS Council’s judgment on the matter. The this regulatory review. We also received employees to metropolitan locality pay Pay Agent also concludes that written comments, including comments areas from the RUS locality pay area and exceptions to established rules should from the Department of Defense (the retain about 16,000 GS employees in be avoided. largest Federal agency in the area), metropolitan locality pay areas that Several commenters suggested that supporting this recommendation. The would have been excluded if only the the boundaries of GS locality pay areas final rule incorporates the York- new MSA definitions were used. should coincide with the boundaries of Hanover-Gettysburg, PA CSA into the Comments on the Proposed Rule certain Federal Wage System (FWS) Washington-Baltimore locality pay area. local wage areas. There are 32 GS OPM received 113 comments on the locality pay areas and more than 130 Waiver of Delay in Effective Date proposed regulations, including FWS areas. Salary surveys for the GS In order to give practical effect to comments from Members of Congress program are conducted by the Bureau of these regulations at the earliest possible from Massachusetts and Virginia and Labor Statistics, are expensive to moment, I find that good cause exists for comments from three Federal agencies. conduct, and therefore cover fewer making this rule effective immediately The commenters generally supported areas. Those for the FWS program are upon publication in the Federal the planned changes in locality pay conducted by the Department of Register. The delay in effective date is areas. Defense, cover jobs that are more readily waived so that affected agencies and Many of the commenters cited high matched to non-Federal jobs, and employees may benefit from the new living costs as the justification for include more areas. The Pay Agent locality pay area definitions on the higher locality pay. However, living concludes that there is no basis for effective date of the January 2005 GS costs are not directly considered in requiring that the boundaries of the GS pay adjustment. setting locality pay or defining locality locality pay areas coincide with the pay areas. Locality pay is set by boundaries of the FWS local wage areas. E.O. 12866, Regulatory Review comparing General Schedule and non- One commenter expressed concern The Office of Management and Budget Federal pay for the same levels of work that delays in the Pay Agent’s plans to has reviewed this rule in accordance to allow the Government to recruit and merge the Kansas City, St. Louis, and with E.O. 12866. retain an adequate workforce. Locality Orlando locality pay areas with the Rest pay is not designed to equalize living of U.S. locality pay area might delay Regulatory Flexibility Act standards for GS employees across the plans to expand the existing small-scale I certify that these regulations will not country. Since living costs are just one salary survey of Austin, TX. The 1-year have a significant economic impact on of many factors that affect the supply of delay in discontinuing these three a substantial number of small entities and demand for labor, they are not locality pay areas has not affected BLS’ because they will apply only to Federal considered separately. plans to expand its salary surveys. agencies and employees. Some commenters suggested that One Federal agency sub-element other locations also should be added to commented that it is not experiencing List of Subjects in 5 CFR Part 531 a higher paying locality pay area. These recruitment and retention problems in Government employees, Law locations include Beale Air Force Base Huntsville and that the Huntsville area enforcement officers, Wages. in Yuba County, CA; Berks County, PA; should not be expanded. The same Office of Personnel Management. Clinton County, OH; Cumberland agency wished to retain the St. Louis County, ME; El Paso County, CO; locality pay area and expand the Kay Coles James, Jefferson County, WA; Lancaster, PA; Chicago and Indianapolis areas in order Director. Mendocino County, CA; and Portland, to assist its recruitment efforts. While I Accordingly, OPM is amending 5 CFR ME. We have not adopted these recruitment and retention issues are part 531 as follows: suggestions because these locations do certainly important to the Government not meet the criteria established for as an employer, they are not the basis PART 531—PAY UNDER THE being added to an adjacent locality pay for establishing or defining locality pay GENERAL SCHEDULE area and because BLS is unable to areas. The Pay Agent concludes that one conduct full-scale salary surveys in any agency sub-element’s experience in a I 1. The authority citation for part 531 of these locations. few areas should not affect the general continues to read as follows: The Pay Agent notes that employees methodology used to define the locality Authority: 5 U.S.C. 5115, 5307, and 5338; in Mendocino County, CA, used census pay areas for all Federal agencies. sec. 4 of Pub. L. 103–89, 107 Stat. 981; and data to measure Federal employment. One agency commented that E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., The Federal Salary Council’s criterion expanding locality pay area boundaries p. 316; Subpart B also issued under 5 U.S.C. for inclusion in a locality pay area is could result in changes in special rates 5303(g), 5333, 5334(a), and 7701(b)(2); based on the number of GS employees entitlements. OPM will address that Subpart C also issued under 5 U.S.C. 5304, 5305, and 5553; sections 302 and 404 of in an area. Census data include other issue in guidance we plan to issue later Federal Employees Pay Comparability Act of Federal employees, such as uniformed this year regarding the January 2005 pay 1990 (FEPCA), Pub. L. 101–509, 104 Stat. military, blue-collar employees, and adjustment. 1462 and 1466; and section 3(7) of Pub. L. U.S. Postal Service employees. At its public meeting on September 102–378, 106 Stat. 1356; Subpart D also One commenter suggested that GS 27, 2004, and in its written issued under 5 U.S.C. 5335(g) and 7701(b)(2); employment should not be used as a recommendations of October 21, 2004, Subpart E also issued under 5 U.S.C. 5336;
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Subpart F also issued under 5 U.S.C. 5304, (8) Dayton-Springfield-Greenville, (26) Sacramento—Arden-Arcade— 5305(g)(1), and 5553; and E.O. 12883, 58 FR OH—consisting of the Dayton- Truckee, CA–NV—consisting of the 63281, 3 CFR, 1993 Comp., p. 682 and E.O. Springfield-Greenville, OH CSA; Sacramento—Arden-Arcade—Truckee, 1306, 63 FR 68151, 3 CFR, 1998 Comp., p. (9) Denver-Aurora-Boulder, CO— CA–NV CSA, plus Carson City, NV; 224; Subpart G also issued under 5 U.S.C. consisting of the Denver-Aurora- 5304, 5305, and 5553; section 302 of the (27) St. Louis-St. Charles-Farmington, FEPCA, Pub. L. 101–509, 104 Stat. 1462; and Boulder, CO CSA, plus the Ft. Collins- Loveland, CO MSA and Weld County, MO–IL—consisting of the St. Louis-St. E.O. 12786, 56 FR 67453, 3 CFR, 1991 Comp., Charles-Farmington, MO–IL CSA; p. 376. CO; (10) Detroit-Warren-Flint, MI— (28) San Diego-Carlsbad-San Marcos, Subpart F—Locality-Based consisting of the Detroit-Warren-Flint, CA—consisting of the San Diego- Comparability Payments MI CSA, plus Lenawee County, MI; Carlsbad-San Marcos, CA MSA; (11) Hartford-West Hartford- (29) San Jose-San Francisco-Oakland, I 2. In § 531.602, the definition of CMSA Willimantic, CT–MA—consisting of the CA—consisting of the San Jose-San is removed, a definition of CSA is added Hartford-West Hartford-Willimantic, CT in alphabetical order, and the definition CSA, plus the Springfield, MA MSA and Francisco-Oakland, CA CSA, plus the of MSA is revised to read as follows: New London County, CT; Salinas, CA MSA and San Joaquin (12) Houston-Baytown-Huntsville, County, CA; § 531.602 Definitions. TX—consisting of the Houston- (30) Seattle-Tacoma-Olympia, WA— * * * * * Baytown-Huntsville, TX CSA; consisting of the Seattle-Tacoma- CSA means the geographic scope of a (13) Huntsville-Decatur, AL— Olympia, WA CSA; Combined Statistical Area, as defined by consisting of the Huntsville-Decatur, AL the Office of Management and Budget CSA; (31) Washington-Baltimore-Northern (OMB) in OMB Bulletin No. 04–03, plus (14) Indianapolis-Anderson- Virginia, DC–MD–PA–VA–WV— any areas subsequently added to the Columbus, IN—consisting of the consisting of the Washington-Baltimore- CSA by OMB. Indianapolis-Anderson-Columbus, IN Northern Virginia, DC–MD–VA–WV CSA, plus the Hagerstown-Martinsburg, * * * * * CSA, plus Grant County, IN; (15) Kansas City-Overland Park- MD–WV MSA, the York-Hanover- MSA means the geographic scope of a Kansas City, MO–KS—consisting of the Metropolitan Statistical Area, as defined Gettysburg, PA CSA, Culpeper County, Kansas City-Overland Park-Kansas City, VA, and King George County, VA; and by the Office of Management and MO–KS CSA; Budget (OMB) in OMB Bulletin No. 04– (16) Los Angeles-Long Beach- (32) Rest of U.S.—consisting of those 03, plus any areas subsequently added Riverside, CA—consisting of the Los portions of the continental United States to the MSA by OMB. Angeles-Long Beach-Riverside, CA CSA, not located within another locality pay * * * * * plus the Santa Barbara-Santa Maria- area. I 3. In § 531.603, paragraph (b) is revised Goleta, CA MSA and all of Edwards Air I 4. In § 531.606, paragraph (g) is revised to read as follows: Force Base, CA; to read as follows: (17) Miami-Fort Lauderdale-Miami § 531.603 Locality pay areas. Beach, FL—consisting of the Miami-Fort § 531.606 Administration of locality rates * * * * * Lauderdale-Miami Beach, FL MSA, plus of pay. (b) The following are locality pay Monroe County, FL; * * * * * areas for purposes of this subpart: (18) Milwaukee-Racine-Waukesha, (g) In the event of a change in the (1) Atlanta-Sandy Springs-Gainesville, WI—consisting of the Milwaukee- GA–AL—consisting of the Atlanta- Racine-Waukesha, WI CSA; geographic coverage of a locality pay Sandy Springs-Gainesville, GA–AL (19) Minneapolis-St. Paul-St. Cloud, area as a result of the addition by OMB CSA; MN–WI—consisting of the Minneapolis- of a new area(s) to the definition of an (2) Boston-Worcester-Manchester, St. Paul-St. Cloud, MN–WI CSA; MSA or CSA or as the result of any MA–NH–ME–RI—consisting of the (20) New York-Newark-Bridgeport, change made by the President’s Pay Boston-Worcester-Manchester, MA–NH NY–NJ–CT–PA—consisting of the New Agent in the definition of a locality pay CSA, plus the Providence-New Bedford- York-Newark-Bridgeport, NY–NJ–CT– area, the effective date of any change in Fall River, RI–MA MSA, Barnstable PA CSA, plus Monroe County, PA, and an employee’s entitlement to a locality County, MA, and Berwick, Eliot, Kittery, Warren County, NJ; rate of pay under this subpart is the first (21) Orlando-The Villages, FL— South Berwick, and York towns in York day of the first pay period beginning on consisting of the Orlando-The Villages, County, ME; or after January 1 of the next calendar FL CSA; (3) Chicago-Naperville-Michigan City, (22) Philadelphia-Camden-Vineland, year. Any area removed by OMB from IL–IN–WI—consisting of the Chicago- PA–NJ–DE–MD—consisting of the coverage within an MSA or CSA that Naperville-Michigan City, IL–IN–WI Philadelphia-Camden-Vineland, PA– serves as the basis for defining a locality CSA; NJ–DE–MD CSA, plus Kent County, DE, pay area must be reviewed by the (4) Cincinnati-Middletown- Atlantic County, NJ, and Cape May Federal Salary Council and the Wilmington, OH–KY–IN—consisting of County, NJ; President’s Pay Agent before a decision the Cincinnati-Middletown-Wilmington, (23) Pittsburgh-New Castle, PA— is made regarding the locality pay status OH–KY–IN CSA; consisting of the Pittsburgh-New Castle, of that area. (5) Cleveland-Akron-Elyria, OH— PA CSA; * * * * * consisting of the Cleveland-Akron- (24) Portland-Vancouver-Beaverton, Elyria, OH CSA; OR–WA—consisting of the Portland- [FR Doc. 04–27660 Filed 12–16–04; 8:45 am] (6) Columbus-Marion-Chillicothe, Vancouver-Beaverton, OR–WA MSA, BILLING CODE 6325–39–P OH—consisting of the Columbus- plus Marion County, OR, and Polk Marion-Chillicothe, OH CSA; County, OR; (7) Dallas-Fort Worth, TX—consisting (25) Richmond, VA—consisting of the of the Dallas-Fort Worth, TX CSA; Richmond, VA MSA;
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DEPARTMENT OF AGRICULTURE achieve significant streamlining of the aircraft transitioning to/from the en programs’ regulatory provisions. route environment and executing these Rural Housing Service Delaying implementation of the rule to SIAP procedures. allow more time for further Interested parties were invited to 7 CFR Parts 1806, 1822, 1902, 1925, consideration would not be in the best participate in this rule making 1930, 1940, 1942, 1944, 1951, 1955, interest of the direct MFH program or its proceeding by submitting written 1956, 1965, 3560, and 3565 recipients. All provisions of this comments on the proposal to the FAA. RIN 0575–AC13 regulation are adopted on an interim No comments were received. Class E final basis, are subject to a 30-day airspace designations are published in Reinvention of the Sections 514, 515, comment period, and will remain in paragraph 6005 of FAA Order 7400.9M 516 and 521 Multi-Family Housing effect until the Agency adopts a final dated August 30, 2004, and effective Programs rule. September 16, 2004, which is Dated: December 3, 2004. incorporated by reference in 14 CFR AGENCY: Rural Housing Service, USDA. Gilbert Gonzalez, part 71.1. The Class E airspace ACTION: Interim final rule; correction. Acting Under Secretary, Rural Development. designations listed in this document will be published subsequently in that SUMMARY: [FR Doc. 04–27604 Filed 12–16–04; 8:45 am] The Rural Housing Service is Order. correcting an interim final rule BILLING CODE 3410–XV–P published on November 26, 2004, (69 The Rule FR 69032–69176). This action is taken This amendment to 14 CFR part 71 to correct an error regarding the DEPARTMENT OF TRANSPORTATION establishes Class E airspace at Lexington comment period and effective date of Airport, Lexington, OR. A new RNAV the rule as stated in the preamble. Federal Aviation Administration GPS SIAP at Lexington Airport makes it DATES: Effective Date: November 26, 14 CFR Part 71 necessary for additional controlled 2004. airspace extending upward from 700 FOR FURTHER INFORMATION CONTACT: Sue [Docket FAA–2003–16137; Airspace Docket feet or more above the surface of the Harris-Green, Deputy Director, Multi- 03–ANM–07] earth for the containment and safety of IFR aircraft transitioning to/from the en Family Housing Direct Loan Division, Establishment of Class E Airspace; route environment and executing these Rural Housing Service, U.S. Department Lexington, OR of Agriculture, Room 1241, South SIAP procedures. Building, Stop 0781, 1400 AGENCY: Federal Aviation The FAA has determined that this Independence Avenue, SW., Administration (FAA), DOT. regulation only involves an established Washington, DC 20250–0781, telephone ACTION: Final rule. body of technical regulations for which (202) 720–1660. frequent and routine amendments are SUMMARY: This final rule will establish SUPPLEMENTARY INFORMATION: necessary to keep them operationally Class E airspace at Lexington, OR. New current. Therefore, this regulation: (1) Is Need for Correction Area Navigation (RNAV) Global not a ‘‘significant regulatory action’’ The preamble of the interim final rule Positioning System (GPS) Standard under Executive Order 12866; (2) is not lists a comment period and effective Instrument Approach Procedures a ‘‘significant rule’’ under DOT date that conflicts with the DATES (SIAPs) at Lexington Airport, Lexington, Regulatory Policies and Procedures (44 section. This document corrects that OR, makes this action necessary to add FR 11034; February 26, 1979); and (3) information. Class E airspace. This Class E airspace does not warrant preparation of a extending upward from 700 feet or more regulatory evaluation as the anticipated Correction of Publication above the surface of the earth is impact is so minimal. Since this is a In the interim rule document necessary for the containment and routine matter that will only affect air published November 26, 2004, (69 FR safety of Instrument Flight Rules (IFR) traffic procedures and air navigation, it 69032–69176), make the following aircraft transitioning to/from the en is certified that this rule, when correction. route environment and executing these promulgated, will not have a significant On page 69034, third column, revise SIAP procedures. economic impact on a substantial the ‘‘Discussion of the Interim Final DATES: Effective Dates: 0901 UTC, number of small entities under the Rule’’ section to read as follows: January 20, 2005 criteria of the Regulatory Flexibility Act. FOR FURTHER INFORMATION CONTACT: Ed Discussion of the Interim Final Rule Haeseker, Federal Aviation List of Subjects in 14 CFR Part 71 This interim final rule combines the Administration, Western En Route and Airspace, Incorporation by reference, provisions of the Streamlining and Oceanic Operations, Airspace Branch, Navigation (air). Consolidation of the sections 514, 515, 1601 Lind Avenue SW., Renton, WA 516, and 521 Multi-Family Housing 98055–4056; telephone (425) 227–2527. Adoption of the Amendment (MFH) Programs Proposed Rule SUPPLEMENTARY INFORMATION: I In consideration of the foregoing, the published on June 2, 2003, and the History Federal Aviation Administration Operating Assistance for Off-Farm amends 14 CFR part 71 as follows: Migrant Farmworker Projects Proposed On October 21, 2003, the FAA Rule published on November 2, 2000. proposed to amend Title 14 Code of PART 71—DESIGNATION OF CLASS A, RHS is issuing this regulation as an Federal Regulations part 71 (CFR part CLASS B, CLASS C, CLASS D, AND interim final rule, with an effective date 71) to add Class E airspace at Lexington CLASS E AIRSPACE AREAS; ROUTES; 90 days after publication in the Federal OR (69 FR 19317). A new RNAV GPS AND REPORTING POINTS Register, given that these regulatory SIAP at the Lexington Airport makes it changes are very extensive, affect all necessary to add controlled airspace for I 1. The authority citation for 14 CFR aspects of the programs, and seek to the containment and safety of IFR part 71 continues to read as follows:
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Authority: 49 U.S.C. 106(g), 40103, 40113, nonallocation year, calculation of additional requirements for ESOPs are 40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959– synthetic equity under section 409(p)(5), imposed under § 54.4975–11 of the 1963 Comp., p. 389. and standards for determining whether Excise Tax Regulations. § 71.1 [Amended] a transaction is an avoidance or evasion Section 511 imposes an income tax on of section 409(p). These temporary unrelated business taxable income I 2. The incorporation by reference in 14 regulations generally affect plan (UBTI), as defined in section 512. CFR part 71.1 of the Federal Aviation sponsors of, and participants in, ESOPs Section 512(e)(1) generally provides that Administration Order 7400.9M, holding stock of Subchapter S an interest in an S corporation held by Airspace Designations and Reporting corporations. The text of the temporary an organization described in section Points, dated August 30, 2004, and regulations also serves as the text of the 1361(c)(6), including a qualified plan, is effective September 16, 2004, is proposed regulations set forth in the treated as an interest in an unrelated amended as follows: notice of proposed rulemaking on this trade or business. However, section Paragraph 6005 Class E airspace areas subject in the Proposed Rules section in 512(e)(3) has an exception for employer extending upward from 700 feet or more this issue of the Federal Register. securities held by an ESOP, so that an above the surface of the earth. DATES: Effective Date: These regulations ESOP of an S corporation generally does * * * * * are effective December 17, 2004. not have UBTI under section 512 with respect to the S corporation stock held ANM OR E5 Lexington, OR [Add] Applicability Dates: These temporary regulations are applicable with respect by the ESOP. Lexington Airport, Lexington, OR to plan years beginning on or after Section 409(p)(1) requires an ESOP (Lat. 45°27′15″N., long. 119°41′25″W.) January 1, 2005, but see § 1.409–1T(i)(2) holding employer securities consisting The airspace extending upward from 700 for specific exceptions. of stock in an S corporation to provide feet above the surface of the earth within a that no portion of the assets of the plan 7.0 mile radius of the Lexington Airport; that FOR FURTHER INFORMATION CONTACT: John attributable to (or allocable in lieu of) airspace extending upward from 1200 feet T. Ricotta at (202) 622–6060 (not a toll- such employer securities may, during a above the surface of the earth beginning at free number). ° ′ ″ ° ′ ″ nonallocation year, accrue (or be lat. 45 14 00 N., long 119 33 00 W.; to lat. SUPPLEMENTARY INFORMATION: allocated directly or indirectly under 45°39′26″N., long. 121°08′59″W.; to lat. 45°48′00″N., long. 121°06′30″W.; to lat. Background any plan of the employer meeting the 45°38′52″N., long. 120°09′08″W.; to lat. requirements of section 401(a)) for the ° ′ ″ ° ′ ″ Section 409(p) was enacted as part of benefit of any disqualified person, as 45 36 12 N., long. 119 45 28 W.; to lat. the Economic Growth and Tax Relief 45°43′09″N., long. 119°11′57″W.; to lat. defined in section 409(p). Section 45°31′26″N., long. 119°06′04″W.; thence to Reconciliation Act of 2001 (EGTRRA) 409(p)(3)(A) provides that a the beginning; excluding that airspace within (115 Stat. 38) (2001) to address concerns ‘‘nonallocation year’’ includes any plan Federal airways. about ownership structures involving S year during which the ownership of the * * * * * corporations and ESOPs that S corporation is so concentrated among concentrate the benefits of the ESOP, Issued in Seattle, Washington, on disqualified persons that they own or directly or indirectly, in a small number are deemed to own at least 50 percent November 26, 2004. of persons. Under the statute, an ESOP Suzanne Alexander, of its shares. Section 409(p)(4) provides, is generally permitted to hold S in general, that whether someone is a Acting Area Director, Western En Route and corporation stock, provided that the Oceanic Operations. ‘‘disqualified person’’ depends on a ESOP benefits a sufficiently broad-based person’s deemed-owned shares of S [FR Doc. 04–27686 Filed 12–16–04; 8:45 am] group of employees. corporation stock held by an ESOP BILLING CODE 4910–13–M Section 4975(e)(7) provides that an (deemed-owned ESOP shares). Section ESOP is a defined contribution plan that 409(p)(4) provides, in general, that a is designed to invest primarily in ‘‘disqualified person’’ means any person DEPARTMENT OF THE TREASURY qualifying employer securities and that whose deemed-owned ESOP shares are is either a stock bonus plan which is at least 10 percent of the number of Internal Revenue Service qualified, or a stock bonus plan and deemed-owned ESOP shares or for money purchase pension plan both of whom the aggregate number of deemed- 26 CFR Part 1 which are qualified, under section owned ESOP shares of such person and [TD 9164] 401(a). A plan is not treated as an ESOP the members of such person’s family is under the Internal Revenue Code (Code) at least 20 percent of the number of RIN 1545–BC33 unless it meets the following deemed-owned ESOP shares. Prohibited Allocations of Securities in requirements, to the extent applicable: The determination of whether an S Corporation Section 409(e) (relating to participants’ someone is a disqualified person and voting rights if the employer has a whether a plan year is a nonallocation AGENCY: Internal Revenue Service (IRS), registration-type class of securities); year is also made separately taking into Treasury. section 409(h) (relating to participants’ account synthetic equity. Synthetic ACTION: Temporary regulations. right to receive employer securities; put equity is a general classification unique options); section 409(o) (relating to to section 409(p). The provisions SUMMARY: This document contains participants’ distribution rights and relating to synthetic equity do not temporary regulations concerning payment requirements); section 409(n) modify the rules relating to S requirements for employee stock (relating to securities received in corporations, e.g., the circumstances in ownership plans (ESOPs) holding stock transactions to which section 1042 which options or similar interests are of Subchapter S corporations. The applies); section 409(p) (relating to treated as creating a second class of temporary regulations provide guidance prohibited allocations of securities in an stock. H.R. Conf. Rep. No. 107–84, at on the definition and effects of a S corporation); and section 664(g) 102 n. 52. Under the rules for the prohibited allocation under section (relating to qualified gratuitous transfers treatment of synthetic equity at section 409(p), identification of disqualified of qualified employer securities). As 409(p)(5), if a person owns synthetic persons and determination of a authorized by section 4975(e)(7), equity in an S corporation, then the
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shares of stock in such corporation on 1T(c)(3) of the 2003 regulations, Rev. at the hearing, and taking into account which such synthetic equity is based are Rul. 2004–4 states that a nonallocation Rev. Rul. 2004–4 and that section 409(p) treated as outstanding stock in such year occurs and the individual is a applies to all ESOPs for plan years corporation, and as deemed-owned disqualified person in any case in which beginning on or after January 1, 2005, shares of such person, ‘‘if such (i) shares of an S corporation are these new temporary regulations are treatment of synthetic equity of 1 or employer securities held by an ESOP, being issued effective generally for plan more such persons results in . . . the (ii) the profits of the S corporation years that begin on or after January 1, treatment of any person as a disqualified generated by the business activities of a 2005, subject to a number of special person or * * * the treatment of any specific individual are accumulated and effective date and transition rules that year as a nonallocation year.’’ [Emphasis held for the benefit of that individual in are described in this preamble under the added.] a QSUB or similar entity (such as a heading Effective date. Section 409(p)(7)(A) authorizes the limited liability company), (iii) these Secretary to prescribe such regulations profits are not paid to the individual as Explanation of Provisions as may be necessary to carry out the compensation within 21⁄2 months after Definition of Prohibited Allocation purposes of section 409(p). Section the end of the year in which earned, and In order to satisfy section 409(p), an 409(p)(7)(B) provides that the Secretary (iv) the individual has rights to acquire ESOP holding employer securities may, by regulation or other guidance of shares of stock (or similar interests) of consisting of stock in an S corporation general applicability, provide that a the QSUB or similar entity representing must provide that no portion of the nonallocation year occurs in any case in 50 percent or more of the fair market assets of the plan attributable to (or which the principal purpose of the value of the stock of such QSUB or allocable in lieu of) such employer ownership structure of an S corporation similar entity. Rev. Rul. 2004–4 also securities may, during a nonallocation constitutes an avoidance or evasion of provides that such individual’s right to year, accrue under the ESOP, or be section 409(p). acquire shares of stock (or similar Section 4979A imposes a 50 percent interests) of the QSUB or similar entity allocated directly or indirectly under excise tax on certain prohibited is synthetic equity. Accordingly, Rev. any plan of the employer (including the allocations in an ESOP, including any Rul. 2004–4 holds in each of the three ESOP) meeting the requirements of allocation of employer securities that factual situations that, for purposes of section 401(a), for the benefit of any violates section 409(p), and on any sections 409(p) and 4979A, certain disqualified person. This requirement synthetic equity owned by a individuals are disqualified persons, the has two elements; it prohibits accruals disqualified person during a ESOP has a nonallocation year, and the and allocations. These regulations nonallocation year under section 409(p). disqualified persons are treated as provide two new terms, impermissible In addition, section 4979A includes owning synthetic equity in the form of accrual and impermissible allocation, to special rules for the first nonallocation their options to acquire shares of the reflect these two elements. Under the year of an ESOP under which the excise corresponding QSUB.1 regulations, if there is an impermissible tax applies with respect to all deemed- Rev. Rul. 2004–4 also stated that accrual or an impermissible allocation, owned ESOP shares and all synthetic Treasury and the IRS intend to reflect then there is a prohibited allocation in equity of disqualified persons, even if the guidance in that revenue ruling in violation of this requirement. there is no prohibited allocation in that regulations under section 409(p), Under the definition of impermissible year. Section 4979A(a)(3), (a)(4), and effective for plan years ending after accrual in these regulations, there is a (e)(2)(C). Thus, for example, any October 20, 2003, and that it is expected prohibited allocation to the extent (and unallocated shares in an ESOP loan that the regulations would apply to only to the extent) that employer suspense account that are treated as similar transactions that have the effect securities consisting of stock in an S deemed-owned shares of a disqualified of reserving profits from an individual’s corporation owned by the ESOP and any person pursuant to section 409(p)(4)(C) business activities to provide similar tax assets attributable thereto are held are taken into account in determining benefits to the individual, either with under the ESOP for the benefit of a the amount involved under the use of a QSUB or through the use disqualified person during a 4979A(e)(2)(C). In addition, under of another method. nonallocation year. This rule was section 4979A(e)(3)(D), a special statute Comments were received on the 2003 recommended by a commentator. For of limitations applies to the first year of regulations. A public hearing on the this purpose, assets attributable to S an ESOP that is a nonallocation year. 2003 regulations was held on November corporation securities include not only Temporary regulations under section 17, 2003. After consideration of S corporation stock held in a 409(p) were issued on July 21, 2003 (68 comments received and views expressed disqualified person’s account in the FR 42970). The text of those temporary ESOP, but also any distributions, within regulations also served as the text of a 1 Rev. Rul. 2004–4 also states that arrangements the meaning of section 1368, made on notice of proposed rulemaking that are the same as, or substantially similar to, the S corporation stock held in a following transaction are identified as ‘‘listed published at 68 FR 43058. The 2003 transactions’’ for purposes of §§ 1.6011–4(b)(2), disqualified person’s account in the regulations provide guidance on 301.6111–2(b)(2) and 301.6112–1(b)(2), effective ESOP (including earnings thereon), plus identifying disqualified persons, January 23, 2004: any transaction in which (i) at any proceeds from the sale of S determining whether an ESOP has a least 50 percent of the outstanding shares of an S corporation securities held for a corporation are employer securities held by an nonallocation year, and on the ESOP, (ii) the profits of the S corporation generated disqualified person’s account in the definition of synthetic equity under by the business activities of a specific individual ESOP (including any earnings thereon). section 409(p)(5). are accumulated and held for the benefit of that Under the definition of impermissible In January 2004, the IRS issued Rev. individual in a QSUB or similar entity (such as a allocation, prohibited allocations limited liability company), (iii) these profits are not Rul. 2004–4 (2004–6 I.R.B. 414) which paid to the individual as compensation within 21⁄2 include any allocation for a disqualified addresses three factual situations months after the end of the year in which earned, person directly or indirectly under any involving an S corporation with and (iv) the individual has rights to acquire shares plan of the employer qualified under qualified subchapter S subsidiaries of stock (or similar interests) of the QSUB or similar section 401(a) that occurs during a entity representing 50 percent or more of the fair (QSUBs). Pursuant to the authority of market value of the stock of such QSUB or similar nonallocation year to the extent that a section 409(p)(7)(B) and § 1.409(p)– entity. contribution or other annual addition is
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made, or the disqualified person allocation. 3 Other consequences • Reduction of synthetic equity, e.g., otherwise accrues additional benefits, include imposition of an excise tax by cancellation or distribution of the under the ESOP or any other plan of the under section 4979A and, assuming that synthetic equity. employer qualified under section 401(a) the plan’s provisions do not permit a • A sale of the S corporation (including a release and allocation of prohibited allocation under section securities held in the participant’s ESOP assets from a suspense account, as 409(p), loss of tax qualification for account so that the account is not described at § 54.4975–11(c) and (d)) failure to operate the plan in accordance invested in S corporation stock. that, for the nonallocation year, would with its terms. • A distribution of the S corporation otherwise have been added to the securities held in the participant’s Prevention of a Nonallocation Year account of the disqualified person under account from the ESOP to the the ESOP and invested in employer As part of the regulations that were participant. Such a distribution is only securities consisting of stock in an S proposed in 2003, comments were permissible to the extent the amount is corporation owned by the ESOP but for requested with respect to issues raised otherwise permitted to be distributed a provision in the ESOP to comply with by S corporation ESOPs established by (e.g., for amounts that are subject to section 409(p). March 14, 2001, that will need to section 401(k), the distribution does not violate the distribution restrictions of Effect of a Prohibited Allocation comply with the requirements of section 409(p) beginning in 2005, including section 401(k)(2)(B)(i)). • Under section 409(p)(2) and these transition approaches for ESOPs that A transfer of the S corporation regulations, if there is a prohibited become subject to section 409(p) in securities held for the participant under allocation, then the amount of the 2005. One commentator requested a the ESOP into a separate portion of the prohibited allocation is treated as transition rule under which plan that is not an ESOP (as permitted distributed to the disqualified person at nonqualified deferred compensation under § 54.4975–11(a)(5) of the Excise the time of the prohibited allocation. would be disregarded if it was granted Tax Regulations) or to another qualified Accordingly, the fair market value of the at a time when it was not synthetic plan of the employer that is not an disqualified person’s account under the equity and was distributed within 12 ESOP. ESOP would generally be included in months after it became synthetic equity. Any of these steps must satisfy applicable legal and qualification his or her gross income (to the extent in These issues are particularly requirements, including the excess of his or her allocable investment important because compliance with the nondiscrimination requirements of in the contract, if any, under section 72). requirements of section 409(p) is section 401(a)(4).4 These regulations The additional income tax imposed by required on a current operational basis, provide that, if a transfer is made from section 72(t) would also apply if the as well as a plan document basis. Thus, 1 an ESOP to a separate portion of the disqualified person is less than age 59 ⁄2 for example, if S corporation shares are plan or to another qualified plan of the (and no other exception applies). held in a disqualified person’s account employer that is not an ESOP in order Like a deemed distribution under during a nonallocation year, then there 2 to prevent a nonallocation year, then section 72(p), a deemed distribution is a failure to satisfy section 409(p), both the ESOP and the plan that is not under section 409(p) is not an actual without regard to whether the terms of an ESOP will not fail to satisfy the distribution from the ESOP. Thus, the the ESOP prohibit such actions or requirements of § 1.401(a)(4)–4 merely amount of the prohibited allocation is require preventative action to be taken. because of the transfer. Further, not an eligible rollover distribution and, Factors that might be considered in subsequent to the transfer, the plan that for purposes of applying sections 72 and determining whether there has been a is not an ESOP will not fail to satisfy the 402 with respect to any subsequent failure to comply with the requirements requirements of § 1.401(a)(4)–4 merely distribution from the ESOP, the amount of section 409(p) on a current because of the benefits, rights, or previously taken into account by the operational basis include, for example, features with respect to the transferred disqualified person as income as a result the exercise of voting rights of shares in benefits if those benefits, rights, or of the deemed distribution is treated as the disqualified person’s account, features would satisfy the requirements an investment in the contract. distributions from the S corporation to of § 1.401(a)(4)–4 if the mandatory Under these regulations, if there is a the disqualified person’s account, and disaggregation rule for ESOPs at nonallocation year and there are plan account statements showing § 1.410(b)–7(c)(2) did not apply. prohibited allocations in that year, the allocations to the disqualified person’s In the event of such a transfer, the plan would fail to satisfy the account. requirements of section 4975(e)(7) and transferee plan would be subject to tax A plan might choose to take a number on unrelated business taxable income would cease to be an ESOP. As a result, of steps before the beginning of a year not only would the plan lose the with respect to its pro rata share of in order to ensure that the year is not income from the S corporation prohibited transaction exemption for a nonallocation year, such as steps to loans to an ESOP under section securities, with that expense to be prevent an individual from becoming a charged to the account holding the 4975(d)(3) of the Code and section disqualified person. These include: 408(b)(3) of Title I of the Employee transferred amount. However, the ESOP Retirement Income Security Act of 1974, would be able to continue to satisfy the 3 It should be noted that transactions that give rise requirements of section 4975(e)(7) and as amended (ERISA), but also the to loss of the prohibited transaction exemptions exception in section 512(e)(3) would under section 4975(d)(3) of the Internal Revenue the allocations could be made for the cease to apply to the plan, so that the Code and section 408(b)(3) of Title I of ERISA for participant for the year. plan would owe income tax as a result loans to an ESOP could also give rise to other prohibited transactions under section 4975 of the Determination of Nonallocation Year of unrelated business taxable income Internal Revenue Code, as well as violations of Title under section 512 with respect to S Under section 409(p), a nonallocation I of ERISA, including prohibited transactions under year generally means a plan year during corporation stock held by the plan from section 406 of Title I of ERISA, resulting in, among and after the date of the prohibited other things, the assessment of additional excise taxes under section 4975(a) and (b) of the Internal 4 Further, any sale or transfer of plan assets must Revenue Code, as well as civil penalties under comply with the requirements of part 4 of subtitle 2 See § 1.72(p)–1, Q&A–11 and 12. section 502(i) of ERISA. B of title I of ERISA.
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which on any date disqualified persons (actual ownership, deemed-owned option is based on the number of shares own 50 percent or more of the stock in ESOP shares, plus synthetic equity) is at that are subject to that option. The same the S corporation, separately applied by least 50 percent of the total shares rule also applies to any other synthetic taking into account all outstanding outstanding plus the synthetic equity of equity that is determined by reference to shares of stock in the S corporation disqualified persons. This ‘person-by- shares of stock of the S corporation but (including shares held by the ESOP) and person approach’ is more consistent for which payment is made in cash or by taking into account all outstanding with the statutory rule that synthetic other property. These regulations shares of stock in the S corporation and equity is counted for one person if it provide that in the case of synthetic synthetic equity. These regulations results in any person being treated as a equity determined by reference to shares include some changes from the rules in disqualified person. of stock in the S corporation, the the 2003 regulations for purposes of The person-by-person approach number of shares of synthetic equity determining whether there is a applies to synthetic equity in the form depends on the gross number of shares nonallocation year. of nonqualified deferred compensation, deliverable pursuant to the synthetic The 2003 regulations generally treat a as well as in the form of options or other equity. In the case of synthetic equity person as owning outstanding non- rights related to stock. This approach determined by reference to S ESOP stock that the person has the right prevents dilution of the disqualified corporation shares but payable in cash to acquire, but only in very limited person’s ownership and also addresses or other property (other than S cases. These regulations treat a person a known abuse identified by several corporation shares), the number of as owning outstanding non-ESOP stock commentators involving stock options synthetic equity shares treated as owned that the person has the right to acquire or stock appreciation rights that are is equal to the number of shares of stock unless the actual owner is a person who unlikely to be exercised. In this abuse, having a fair market value equal to the is subject to Federal income tax, the the S corporation issues a large number cash or other property paid right is one that would not be taken into of stock options or stock appreciation (disregarding lapse restrictions as account in determining whether an S rights to lower paid employees which described in § 1.83–3(i)). Accordingly, corporation has a second class of stock are only exercisable at a strike price far the number of shares of synthetic equity under § 1.1361–1(l)(2)(iii) or exceeding even the likely future value of attributed for a stock appreciation right (l)(4)(iii)(C), and a principal purpose of the shares or the strike price is (payable in stock or in cash) equals the the right is not to avoid or evade a periodically reset to exceed the number of shares having a value equal nonallocation year under section 409(p). expected value during the term of the to the appreciation at the time of Other differences from the 2003 option or right. These options or rights measurement (determined without regulations include a change relating to would never be exercised by the regard to lapse restrictions). synthetic equity (discussed in this employees, but are designed to count as In addition, the 2003 regulations preamble under the heading synthetic equity shares in order to provide that rights to acquire stock or Determination of disqualified persons prevent shareholders who actually have interests in an entity related to the S on person-by-person basis) and, in the right to own 10 percent or more of corporation are treated as synthetic response to comments, clarification that, the S corporation from being treated as equity if the interests in the related if any share is treated as owned by more disqualified persons. Several entity are the only significant assets of than one person, then that share is commentators urged Treasury and the the S corporation and the S corporation counted as a single share and that share IRS to prevent this abuse. Under the is the only significant owner of the is treated as owned by disqualified person-by person approach adopted in related entity. These regulations persons if any of the owners is a these regulations, these options or rights broaden that rule by providing that disqualified person. would be ignored in determining synthetic equity includes all rights to acquire stock or similar interests in a Determination of Disqualified Persons whether other shareholders were related entity to the extent of the S on Person-by-Person Basis disqualified persons and would not prevent persons who have actual rights corporation’s ownership. The Under the 2003 regulations, a person’s to become 10 percent shareholders from regulations provide that synthetic equity synthetic equity shares are added to his being treated as disqualified persons. also includes a right to acquire assets of or her deemed-owned ESOP shares to an S corporation or a related entity other determine whether he or she is a Synthetic Equity than either rights to acquire goods, disqualified person. This total number These regulations are generally services, or property at fair market value of shares is then compared with the similar to the 2003 regulations regarding in the ordinary course of business or total outstanding synthetic equity shares what constitutes synthetic equity. fringe benefits excluded from gross in determining whether that person is a Differences include the expansion of the income under section 132. disqualified person. The 2003 definition of synthetic equity to include In the case of synthetic equity that is regulations were criticized for this the right to acquire stock or assets of a not determined by reference to shares of approach in the case of options because related entity and an exclusion for stock of the S corporation (or shares of it allowed options held by other nonqualified deferred compensation stock or similar interests in a related shareholders to dilute the interests of that was taken into account before entity), the 2003 regulations provided the person being tested and prevent January 1, 2005, for purposes of the that the person who is entitled to the them from being treated as a Federal Insurance Contributions Act synthetic equity is treated as owning a disqualified person. (FICA) and that was outstanding before number of shares of stock in the S These regulations change this the first date on which the ESOP corporation equal to the present value of approach by looking only at the acquired any employer securities. the synthetic equity (with such value synthetic equity of the person being determined without regard to any lapse tested to determine if he or she is a Determination of Number of Shares of restriction as defined under the section disqualified person. In addition, a Synthetic Equity 83 regulations) divided by the fair nonallocation year occurs as a result of The 2003 regulations include rules market value of a share of the S synthetic equity if the total share under which the number of synthetic corporation’s stock as of the same date. ownership of disqualified persons equity shares attributed for a stock These regulations include a similar rule,
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but include three rules that were not in owned on an identified determination corporation, taking into account all the 2003 regulations. date remain constant for the period from features of the ownership of the S First, these regulations include a that determination date until the date corporation’s outstanding stock and special rule with respect to voting that is immediately preceding the third related obligations (including synthetic rights. While sections 409(l) and anniversary of the identified equity), any shareholders who are 4975(e)(7) generally require that the determination date. As new grants are taxable entities, and the rights of the employer securities of an ESOP have made during this three-year period, the ESOP, to determine whether, to the voting rights at least equal to the voting appropriate number of shares of extent of the ESOP’s stock ownership, rights of that class of common stock synthetic equity resulting from the new the ESOP receives the economic benefits having the greatest voting rights grant would be determined at the next of ownership in the S corporation that (assuming the employer has no stock determination date, which would occur during the period that stock of the readily traded on an established likewise remain constant during the S corporation is owned by the ESOP. securities market), there might be rights remainder of the same three-year period. Among the factors indicating that the to acquire a class of shares that are not However, the ESOP must recalculate the ESOP receives these economic benefits currently outstanding and that have number of shares of this type of include shareholder voting rights, the greater voting rights. Under these synthetic equity at least every three right to receive distributions made to regulations, if a synthetic equity right years, based on the S corporation share shareholders, and the right to benefit includes (directly or indirectly) a right value on the applicable determination from the profits earned by the S to purchase or receive shares of S date and the aggregate present value of corporation, including the extent to corporation stock that have per-share nonqualified deferred compensation on which actual distributions of profits are voting rights greater than the per-share that determination date. The regulations made from the S corporation to the voting rights of one or more shares of S include an example illustrating this ESOP and the extent to which the corporation stock held by the ESOP, rule. ESOP’s ownership interest in then the number of shares of deemed Third, these regulations include a undistributed profits and future profits owned synthetic equity attributable to new rule for cases in which the ESOP is subject to dilution as a result of such right is at least equal to the number does not own all of the stock of the S synthetic equity, for example, the of shares that would have the same corporation. This rule reflects the view ESOP’s ownership interest is not subject voting rights if such shares had the same that the dilutive effect of synthetic to dilution if the total amount of per-share voting rights as shares held by equity only affects an ESOP to the synthetic equity is a relatively small the ESOP. extent of the ESOP’s ownership interest portion of the total number of shares Second, like the 2003 regulations, in the S corporation. Under this rule, and deemed-owned shares of the S these regulations permit the number of the number of synthetic shares corporation. synthetic equity shares for nonqualified otherwise determined is reduced ratably deferred compensation (that is not to the extent that shares of the S This standard is promulgated determined by reference to shares of corporation are owned by a person who pursuant to the authority of Treasury stock of the S corporation or shares of is not an ESOP (and who is subject to and the IRS to act promptly to issue stock or similar interests in a related Federal income taxes). For example, if guidance to prevent ownership entity) to be determined as of the first an S corporation has 200 outstanding structures that deny an ESOP the day of the ESOP’s plan year, or any shares, of which individual A owns 50 economic benefits of ownership and, in other reasonable determination date or shares and the ESOP owns the other 150 addition, these regulations identify dates during a plan year that is shares, and individual B would be certain specific ownership structures consistently used by the ESOP for this treated as owning 200 synthetic equity that constitute an avoidance or evasion purpose for all persons. These shares of the S corporation but for the of section 409(p). Specifically, the regulations require that the date used be special rule for cases in which the ESOP regulations identify the transactions reasonably representative of the share does not own all of the stock of the S described in Rev. Rul. 2004–4 as being value of the S corporation’s stock. The corporation, then the number of an avoidance or evasion of section number of shares of synthetic equity synthetic shares treated as owned by B 409(p) and provide that there is a treated as owned for any period from a is decreased from 200 to 150 (because nonallocation year not only in the determination date through the date the ESOP only owns 75% of the situations described in the revenue immediately preceding the next outstanding stock of the S corporation, ruling but also in situations in which following determination date is the rather than 100%). profits are segregated using a method number of shares treated as owned on other than QSUBs. Under the the first day of that period. In addition, Avoidance or Evasion of Section 409(p) regulations, the principal purpose of the these regulations include a new rule These regulations include a standard ownership structure of an S corporation intended to address concerns expressed for determining whether the principal constitutes an avoidance or evasion of in the comments regarding purpose of the ownership structure of section 409(p), and a nonallocation year administrative and planning difficulties an S corporation involving synthetic results, in any case in which (i) the that arise from a daily, or even annual, equity constitutes an avoidance or profits of the S corporation generated by determination of synthetic equity shares evasion of section 409(p). Under this the business activities of a specific where the number is affected both by standard, whether the principal purpose individual or individuals are the potential volatility of the S of the ownership structure of an S substantially accumulated and held for corporation stock value and separately corporation involving synthetic equity the benefit of that individual or by the potential volatility of the constitutes an avoidance or evasion of individuals on a tax-deferred basis nonqualified deferred compensation. section 409(p) is determined by taking within an entity related to the S Under these regulations, the ESOP may into account all the surrounding facts corporation, such as a partnership, trust, provide, on a reasonable and consistent and circumstances. An avoidance or or corporation (such as in a subsidiary basis used by the ESOP for this purpose evasion of section 409(p) does not occur that is a disregarded entity), or through for all persons, that the number of where the ESOP receives the economic any other method that has the same shares of synthetic equity treated as benefits of ownership in the S effect of segregating profits for the
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benefit of such individual or individuals to either ESOP shares held for a Special Analyses (such as nonqualified deferred disqualified person or synthetic equity It has been determined that this compensation), (ii) the individual or that is treated as owned under these Treasury decision is not a significant individuals for whom profits are regulations on the first day of the plan regulatory action as defined in segregated have rights to acquire 50 year, regardless of whether there is an Executive Order 12866. Therefore, a percent or more of those profits directly impermissible accrual or impermissible regulatory assessment is not required. It or indirectly (for example, by purchase allocation. See section 4979A(a)(3), also has been determined that section of the subsidiary), and (iii) a (a)(4), and (e)(2)(C). 553(b) of the Administrative Procedure nonallocation year would occur if this Under another transition rule, the Act (5 U.S.C. chapter 5) does not apply section were separately applied with new person-by-person rules in these to these regulations. For the respect to either the separate entity or regulations on how to determine applicability of the Regulatory whatever method has the effect of whether a person is a disqualified Flexibility Act (5 U.S.C. chapter 6) refer segregating profits of the individual or to the Special Analyses section of the individuals, treating such entity as a person and whether a year is a preamble to the cross-referencing notice separate S corporation owned by an nonallocation year generally do not go of proposed rulemaking published in ESOP (or in the case of any other into effect until July 1, 2005. However, the Proposed Rules section in this issue method of segregation of profits by comments indicated that the 2003 of the Federal Register. Pursuant to treating those profits as the only assets regulations could be easily avoided or of a separate S corporation owned by an evaded by granting options or stock section 7805(f) of the Internal Revenue ESOP). This conclusion both reflects the appreciation rights with artificially high Code, these temporary regulations will holding in Rev. Rul. 2004–4 (discussed strike prices or where the strike price is be submitted to the Chief Counsel for in this preamble under the heading periodically increased to exceed the Advocacy of the Small Business Background) and treats similar expected value before the option or right Administration for comment on their transactions as resulting in a is to expire. Thus, with respect to the impact. nonallocation year, as Rev. Rul. 2004–4 period from (and including) December Drafting Information indicated would be reflected in these 31, 2004 through June 30, 2005, the new The principal author of these regulations. rules apply to plans under which a nonallocation year would occur under regulations is John T. Ricotta of the Effective Dates the 2003 temporary regulations if Office of the Division Counsel/Associate These temporary regulations are synthetic equity were to exclude stock Chief Counsel (Tax Exempt and applicable for plan years beginning on options, stock appreciation rights, or Government Entities). However, other or after January 1, 2005. However, there similar rights to acquire shares of the S personnel from the IRS and Treasury are a number of special effective date corporation or a related entity where the participated in their development. and transition rules. facts and circumstances indicate that List of Subjects in 26 CFR Part 1 These regulations preserve the rules there is no reasonable likelihood that of the 2003 temporary regulations with the holder of the right will receive the Income taxes, Reporting and respect to plan years beginning before shares (or equivalent value), e.g., cases recordkeeping requirements. January 1, 2005, with the new rules in in which the option is based on an Amendments to the Regulations these regulations to apply thereafter. exercise price that is more than 200% of However, as described in this section, the fair market value of the shares on I Accordingly, 26 CFR part 1 is amended the rules in these regulations dealing the date of grant or a stock appreciation as follows: with ownership structures that right is payable only if the appreciation PART 1—INCOME TAXES constitute an avoidance or evasion of exceeds 100% of the fair market value section 409(p), including the rules of the shares on the date of grant. This I Paragraph 1. The authority citation for relating to structures similar to those special rule applies for plan years part 1 continues to read, in part, as addressed in Rev. Rul. 2004–4, apply for ending on or after December 31, 2004 in follows: plan years ending on or after December order to ensure that an employer cannot Authority: 26 U.S.C. 7805 * * *. 31, 2004. avoid or evade the purposes of section Under the transition rules, ESOP 409(p)—even for the calendar year Section 1.409(p)–1T is also issued shares that are held for a disqualified 2004—by using artificial grants that are under 26 U.S.C. 409(p)(7). * * * person before the first plan year unlikely to ever be paid. I Par. 2. Section 1.409(p)–1T is revised beginning on or after January 1, 2005 to read as follows: will not be treated as an impermissible Under a third transition rule, the new accrual in 2005 if the shares are rules in these regulations, including the § 1.409(p)–1T Prohibited allocation of disposed of before July 1, 2005 (e.g., by rules relating to the right to receive securities in an S corporation (temporary). distribution or transfer to a non-ESOP) shares with disproportional voting (a) Organization of this section. and no amount is contributed for the rights, do not go into effect until July 1, Section 409(p) applies if a nonallocation benefit of the disqualified person under 2005, if there would be no prohibited year occurs in an employee stock any plan of the employer intended to allocation before then under these ownership plan (ESOP), as defined in meet the requirements of section 401(a) regulations if the new rules in these section 4975(e)(7), that holds shares of (including the ESOP) during the period regulations relating to the right to stock of an S corporation, as defined in from the first day of the first plan year receive shares with disproportional section 1361, that are employer beginning on or after January 1, 2005 voting rights were disregarded. securities as defined in section 409(l). through June 30, 2005. However, even if Further, the IRS will permit plans to Paragraph (b) of this section sets forth no amount is allocated to a disqualified rely on the exception for pre-ESOP the general rule under section 409(p)(1) person during this period, but this nonqualified deferred compensation for and (2) prohibiting any accrual or period is part of the first nonallocation periods before January 1, 2005, allocation to a disqualified person in a year of the ESOP, an excise tax will (described in this preamble under the nonallocation year. Paragraph (c) of this apply under section 4979A with respect heading Synthetic Equity). section sets forth rules under section
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409(p)(3), (5), and (7) for determining made on S corporation stock held in a rollover distribution under section whether a year is a nonallocation year, disqualified person’s account in the 402(c). However, for purposes of generally based on whether disqualified ESOP (including earnings thereon), plus applying sections 72 and 402 with persons own at least 50 percent of the any proceeds from the sale of S respect to any subsequent distribution shares of the S corporation, either taking corporation securities held for a from the ESOP, the amount that the into account only the outstanding shares disqualified person’s account in the disqualified person previously took into of the S corporation (including shares ESOP (including any earnings thereon). account as income as a result of the held by the ESOP) or taking into Thus, for example, in the event of a deemed distribution is treated as an account both the outstanding shares and nonallocation year, all S corporation investment in the contract. synthetic equity of the S corporation. shares and all other ESOP assets (B) Other effects. If there is a Paragraphs (d), (e), and (f) of this section attributable to S corporation stock, prohibited allocation, then the plan fails contain definitions of disqualified including distributions, sales proceeds, to satisfy the requirements of section person under section 409(p)(4) and (5), and earnings on either the distribution 4975(e)(7) and ceases to be an ESOP. In deemed-owned ESOP shares under or proceeds, held for the account of such a case, the exemption from the section 409(p)(4)(C), and synthetic such disqualified person in the ESOP excise tax on prohibited transactions for equity under section 409(p)(6)(C). during that year are an impermissible loans to leveraged ESOPs contained in Paragraph (g) of this section contains a accrual for the benefit of that person, section 4975(d)(3) would cease to apply standard for determining when the whether attributable to contributions in to any loan (with the result that the principal purpose of the ownership the current year or in prior years. employer would owe an excise tax with structure of an S corporation constitutes (iii) Impermissible allocation. An respect to the previously exempt loan) an avoidance or evasion of section impermissible allocation means any and, further, the exception in section 409(p). The definitions used in section allocation for a disqualified person 512(e)(3) would not apply to the plan 409(p) and this section are also directly or indirectly under any plan of (with the result that the plan may owe applicable for purposes of section the employer qualified under section income tax as a result of unrelated 4979A, which imposes an excise tax on 401(a) that occurs during a business taxable income under section certain events, including a nonallocation year to the extent that a 512 with respect to S corporation stock nonallocation year under section 409(p). contribution or other annual addition is held by the plan). See also section (b) Prohibited allocation in a made, or the disqualified person 4979A(a) which imposes an excise tax nonallocation year—(1) General rule. otherwise accrues additional benefits, in certain events, including a prohibited An ESOP holding employer securities under the ESOP or any other plan of the allocation under section 409(p). consisting of stock in an S corporation employer qualified under section 401(a) (v) Prevention of prohibited must provide that no portion of the (including a release and allocation of allocation.—(A) Transfer of account to assets of the plan attributable to (or assets from a suspense account, as non-ESOP. An ESOP may prevent a allocable in lieu of) such employer described at § 54.4975–11(c) and (d) of nonallocation year or a prohibited securities may, during a nonallocation this chapter) that, for the nonallocation allocation during a nonallocation year year, accrue under the ESOP, or be year, would otherwise have been added by permitting assets (including S allocated directly or indirectly under to the account of the disqualified person corporation securities) allocated to the any plan of the employer (including the under the ESOP and invested in account of a disqualified person (or a ESOP) meeting the requirements of employer securities consisting of stock person reasonably expected to become a section 401(a), for the benefit of any in an S corporation owned by the ESOP disqualified person absent a transfer disqualified person (a prohibited but for a provision in the ESOP to described in this paragraph (b)(2)(v)(A)) allocation). comply with section 409(p). to be transferred into a separate portion (2) Additional rules—(i) Prohibited (iv) Effects of prohibited allocation— of the plan that is not an ESOP, as allocation definition. For purposes of (A) Deemed distribution. If there is a described in § 54.4975–11(a)(5) of this section 409(p)(2)(A) and paragraph prohibited allocation, the amount of the chapter, or to another plan of the (b)(1) of this section, there is a prohibited allocation, as determined employer that satisfies the requirements prohibited allocation (i.e., assets accrue under this paragraph (b)(2), is treated as of section 401(a) (and that is not an or are allocated as prohibited under distributed from the ESOP (or other plan ESOP). In the event of such a transfer paragraph (b)(1) of this section) if there of the employer) to the disqualified involving S corporation securities, the is either an impermissible accrual as person on the first day of the plan year recipient plan is subject to tax on defined in paragraph (b)(2)(ii) of this on which there is an impermissible unrelated business taxable income section or an impermissible allocation accrual or on the date of the allocation under section 512. as defined in paragraph (b)(2)(iii) of this in the case of an additional (B) Relief from nondiscrimination section. The amount of the prohibited impermissible accrual or impermissible requirement. Pursuant to this paragraph allocation is equal to the sum of the allocation during the plan year but after (b)(2)(v)(B), if a transfer described in impermissible accrual plus the amount the first day of the plan year. Thus, the paragraph (b)(2)(v)(A) of this section is of the impermissible allocation (if any). fair market value of assets in the made from an ESOP to a separate (ii) Impermissible accrual. There is an disqualified person’s account that portion of the plan or to another impermissible accrual to the extent (and constitutes an impermissible accrual or qualified plan of the employer that is only to the extent) that employer allocation is included in gross income not an ESOP, then both the ESOP and securities consisting of stock in an S (to the extent in excess of any the plan or portion of a plan that is not corporation owned by the ESOP and any investment in the contract allocable to an ESOP will not fail to satisfy the assets attributable thereto are held such amount) and is subject to any requirements of § 1.401(a)(4)–4 merely under the ESOP for the benefit of a additional income tax that applies because of the transfer. Further, disqualified person during a under section 72(t). A deemed subsequent to the transfer, that plan will nonallocation year. For this purpose, distribution under this paragraph not fail to satisfy the requirements of assets attributable to S corporation (b)(2)(iv)(A) is not an actual distribution § 1.401(a)(4)–4 merely because of the securities include any distributions, from the ESOP. Thus, the amount of the benefits, rights, or features with respect within the meaning of section 1368, prohibited allocation is not an eligible to the transferred benefits if those
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benefits, rights, or features would satisfy nonallocation year under this paragraph corporation is at least 10 percent of the the requirements of § 1.401(a)(4)–4 if the (c)(3), the Commissioner may treat any number of the deemed-owned ESOP mandatory disaggregation rule for person as a disqualified person. See shares of the S corporation; ESOPs at § 1.410(b)–7(c)(2) did not paragraph (g) of this section for (ii) The aggregate number of such apply. guidance regarding when the principal person’s deemed-owned ESOP shares (c) Nonallocation year—(1) Definition purpose of an ownership structure of an and synthetic equity shares of the S generally. For purposes of section S corporation involving synthetic equity corporation is at least 10 percent of the 409(p) and this section, a nonallocation constitutes an avoidance or evasion of sum of: year means a plan year of an ESOP section 409(p). (A) The total number of deemed- during which, at any time, the ESOP (4) Special rule for certain stock owned ESOP shares, and holds any employer securities that are rights. (i) For purposes of paragraph (B) The person’s synthetic equity shares of an S corporation and either— (c)(1) of this section, a person is treated shares of the S corporation; (i) Disqualified persons own at least as owning stock that the person has a (iii) The aggregate number of the S 50 percent of the number of outstanding right to acquire if, at all times during the corporation’s deemed-owned ESOP shares of stock in the S corporation period when such right is effective, the shares of such person and of the (including deemed-owned ESOP stock that the person has the right to members of such person’s family is at shares); or acquire is both issued and outstanding least 20 percent of the number of (ii) Disqualified persons own at least and is held by persons other than the deemed-owned ESOP shares of the S 50 percent of the sum of: ESOP, the S corporation, or a related corporation; or (A) The outstanding shares of stock in entity (as defined in paragraph (f)(3) of (iv) The aggregate number of the S the S corporation (including deemed- this section). corporation’s deemed-owned ESOP owned ESOP shares), plus (ii) This paragraph (c)(4) applies only shares and synthetic equity shares of (B) The shares of synthetic equity in if treating persons as owning the shares such person and of the members of such the S corporation owned by disqualified described in paragraph(c)(4)(i) of this person’s family is at least 20 percent of persons. section results in a nonallocation year. the sum of: (2) Attribution rules. For purposes of This paragraph (c)(4) does not apply to (A) The total number of deemed- this paragraph (c), the rules of section a right to acquire stock of an S owned ESOP shares, and 318(a) apply to determine ownership of corporation held by a shareholder (B) The synthetic equity shares of the shares in the S corporation (including subject to Federal income tax that, S corporation owned by such person deemed-owned ESOP shares) and under § 1.1361–1(l)(2)(iii) or and the members of such person’s synthetic equity. However, for this (l)(4)(iii)(C), would not be taken into family. purpose, section 318(a)(4) (relating to account in determining if an S (2) Treatment of family members; options to acquire stock) is disregarded corporation has a second class of stock definition—(i) Rule. Each member of the and, in applying section 318(a)(1), the provided that a principal purpose of the family of any person who is a members of an individual’s family right is not the avoidance or evasion of disqualified person under paragraph include members of the individual’s section 409(p). Under the last sentence (d)(1)(iii) or (iv) of this section is a family under paragraph (d)(2) of this of paragraph (f)(2)(i) of this section, this disqualified person. section. In addition, an individual is paragraph (c)(4)(ii) does not apply for (ii) General definition. For purposes treated as owning deemed-owned ESOP purposes of determining ownership of of section 409(p) and this section, shares of that individual deemed-owned ESOP shares or whether member of the family means, with notwithstanding the employee trust an interest constitutes synthetic equity. respect to an individual— exception in section 318(a)(2)(B)(i). If (5) Application with respect to shares (A) The spouse of the individual; the attribution rules in paragraph (f)(1) treated as owned by more than one (B) An ancestor or lineal descendant of this section apply, then the rules of person. For purposes of applying of the individual or the individual’s paragraph (f)(1) of this section are paragraph (c)(1) of this section, if, by spouse; applied before the rules of this application of the rules of paragraph (C) A brother or sister of the paragraph (c)(2). (c)(2), (c)(4), or (f)(1) of this section, any individual or of the individual’s spouse (3) Special rule for avoidance or share is treated as owned by more than and any lineal descendant of the brother evasion. (i) The ownership structures one person, then that share is counted or sister; and described in paragraph (g)(3) of this as a single share and that share is (D) The spouse of any individual section result in a nonallocation year. In treated as owned by disqualified described in paragraph (d)(2)(ii)(B) or addition, under the ownership persons if any of the owners is a (C) of this section. structures described in paragraph (g)(3) disqualified person. (iii) Spouse. A spouse of an of this section, the individual referred to (6) Effect of nonallocation year. See individual who is legally separated from in paragraph (g)(3) of this section is paragraph (b) of this section for a such individual under a decree of treated as a disqualified person and that prohibition applicable during a divorce or separate maintenance is not person’s interest in the separate entity is nonallocation year. See also section treated as such individual’s spouse treated as synthetic equity. 4979A for an excise tax applicable in under paragraph (d)(2)(ii)(A) of this (ii) Under section 409(p)(7)(B), the certain cases, including section section. Commissioner, in revenue rulings, 4979A(a)(3) and (4) which applies (iv) Attribution rules. For purposes of notices, and other guidance published during a nonallocation year (whether or this paragraph (d), the rules of section in the Internal Revenue Bulletin (see not there is a prohibited allocation 318(a) apply to determine ownership of § 601.601(d)(2)(ii)(b) of this chapter), during the year). shares in the S corporation (including may provide that a nonallocation year (d) Disqualified persons—(1) General deemed-owned ESOP shares) and occurs in any case in which the definition. For purposes of section synthetic equity. However, for this principal purpose of the ownership 409(p) and this section, a disqualified purpose, section 318(a)(4) (relating to structure of an S corporation constitutes person means any person for whom— options to acquire stock) is disregarded an avoidance or evasion of section (i) The number of such person’s and, in applying section 318(a)(1), the 409(p). For any year that is a deemed-owned ESOP shares of the S members of an individual’s family
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include members of the individual’s for which there were shares released remuneration to which section 404(a)(5) family under paragraph (d)(2)(ii) of this and allocated from a suspense account, applies; remuneration for which a section. In addition, an individual is or if there has been no such prior release deduction would be permitted under treated as owning deemed-owned ESOP and allocation from a suspense account, section 404(a)(5) if separate accounts shares of that individual then determined in proportion to a were maintained; any right to receive notwithstanding the employee trust reasonable estimate of the shares that property to which section 83 applies exception in section 318(a)(2)(B)(i). If would be released and allocated in the (including a payment to a trust the attribution rules in paragraph (f)(1) first year of loan repayment). described in section 402(b) or to an of this section apply, then the rules of (f) Synthetic equity—(1) Ownership of annuity described in section 403(c)) in paragraph (f)(1) of this section are synthetic equity. For purposes of section a future year for the performance of applied before the rules of this 409(p) and this section, synthetic equity services; any transfer of property (to paragraph (d)(2). is treated as owned by a person in the which section 83 applies) in connection (3) Special rule for certain same manner as stock is treated as with the performance of services to the nonallocation years. See paragraph owned by a person, directly or under extent that the property is not (c)(3) of this section (relating to the rules of section 318(a)(2) and (3). substantially vested within the meaning avoidance or evasion of section 409(p)) Synthetic equity means the rights of § 1.83–3(i) by the end of the plan year for special rules permitting certain described in paragraph (f)(2) of this in which transferred; and a split-dollar persons to be treated as disqualified section. life insurance arrangement under persons in certain nonallocation years. (2) Synthetic equity—(i) Rights to § 1.61–22(b) entered into in connection (4) Example. The rules of this acquire stock of the S corporation. with the performance of services (other paragraph (d) are illustrated by the Synthetic equity includes any stock than one under which, at all times, the following example: option, warrant, restricted stock, only economic benefit that will be deferred issuance stock right, stock Example. (i) Facts. An S corporation has provided under the arrangement is 800 outstanding shares of which 100 are appreciation right payable in stock, or current life insurance protection as owned by individual O and 700 are held in similar interest or right that gives the described in § 1.61–22(d)(3)). Synthetic an employee stock ownership plan (ESOP) holder the right to acquire or receive equity also includes any other during 2005, including 200 shares held in the stock of the S corporation in the future. remuneration for services under a plan, ESOP account of O, 65 shares held in the Rights to acquire stock in an S or method or arrangement, deferring the ESOP account of participant P, and 40 shares corporation with respect to stock that is, receipt of compensation to a date that is held in the ESOP account of participant Q at all times during the period when such after the 15th day of the 3rd calendar who is P’s spouse. The S corporation has no rights are effective, both issued and month after the end of the entity’s synthetic equity. outstanding and held by persons (who (ii) Conclusion. O is a disqualified person taxable year in which the related during 2005 because O’s account in the ESOP are subject to federal income taxes) services are rendered. However, holds at least 10 percent of the shares owned other than the ESOP, the S corporation, synthetic equity does not include by the ESOP (200 is 28.6 percent of 700). In or a related entity are not synthetic benefits under a plan that is an eligible addition, P is a disqualified person during equity (but see paragraph (c)(4) of this retirement plan within the meaning of 2005 because, under paragraph (d)(2) of this section). section 402(c)(8)(B). section, P is treated as owning the shares (ii) Special rule for certain stock (B) For purposes of applying held by Q and P’s total deemed-owned shares rights. Synthetic equity also includes a paragraph (f)(2)(iv)(A) of this section are thus at least 10 percent of the shares right to a future payment (payable in with respect to an ESOP, synthetic owned by the plan (65 plus 40 is more than cash or any other form other than stock equity does not include any interest 10 percent of 700). In addition, Q is a of the S corporation) from an S disqualified person as a result of the rules in described in such paragraph (f)(2)(iv)(A) paragraph (d)(2) of this section. As a result, corporation that is based on the value of of this section to the extent that— disqualified persons own at least 50 percent the stock of the S corporation, such as (1) The interest is nonqualified of the outstanding shares of the S corporation appreciation in such value. Thus, deferred compensation (within the during 2005 (O’s 100 directly owned shares, synthetic equity includes a stock meaning of section 3121(v)(2)) that was O’s 200 deemed-owned shares, P’s 65 appreciation right with respect to stock outstanding on December 17, 2004; deemed-owned shares, plus Q’s 40 deemed of an S corporation that is payable in (2) The interest is an amount that was owned shares are 50.6 percent of 800). cash or a phantom stock unit with taken into account (within the meaning (e) Deemed-owned ESOP shares. For respect to stock of an S corporation that of § 31.3121(v)(2)–1(d) of this chapter) purposes of section 409(p) and this is payable in cash. prior to January 1, 2005, for purposes of section, a person is treated as owning (iii) Rights to acquire interests in or taxation under chapter 21 of the Internal his or her deemed-owned ESOP shares. assets of an S corporation or a related Revenue Code (or income attributable Deemed-owned ESOP shares mean, entity. Synthetic equity includes a right thereto); and with respect to any person— to acquire stock or other similar (3) The interest was held before the (1) Any shares of stock in the S interests in a related entity to the extent first date on which the ESOP acquires corporation constituting employer of the S corporation’s ownership. any employer securities. securities that are allocated to such Synthetic equity also includes a right to (v) No overlap among shares of person’s account under the ESOP; and acquire assets of an S corporation or a deemed-owned ESOP shares or (2) Such person’s share of the stock in related entity other than either rights to synthetic equity. Synthetic equity under the S corporation that is held by the acquire goods, services, or property at this paragraph (f)(2) does not include ESOP but is not allocated to the account fair market value in the ordinary course shares that are deemed-owned ESOP of any participant or beneficiary (with of business or fringe benefits excluded shares (or any rights with respect to such person’s share to be determined in from gross income under section 132. deemed-owned ESOP shares to the the same proportion as the shares (iv) Special rule for nonqualified extent such rights are specifically released and allocated from a suspense deferred compensation. (A) Synthetic permitted under section 409(h)). In account, as described at § 54.4975–11(c) equity also includes any of the addition, synthetic equity under a and (d) of this chapter, under the ESOP following with respect to an S specific subparagraph of this paragraph for the most recently ended plan year corporation or a related entity: any (f)(2) does not include anything that is
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synthetic equity under paragraph the case of synthetic equity that is based on the number of synthetic equity (f)(2)(i), (ii), (iii) or (iv) of this section. determined by reference to shares of shares resulting from the additional (3) Related entity. For purposes of this stock (or similar interests) in a related accrual, allocation, or grant (determined paragraph (f), related entity means any entity, the person who is entitled to the as of the determination date on or next entity in which the S corporation holds synthetic equity is treated as owning following the date of the accrual, an interest and which is a partnership, shares of stock of the S corporation with allocation, or grant). However, the ESOP a trust, an eligible entity that is the same aggregate value as the number must provide for the number of shares disregarded as an entity that is separate of shares of stock (or similar interests) of synthetic equity to which this from its owner under § 301.7701–3 of of the related entity (with such value paragraph (f)(4)(iii) applies to be re- this chapter, or a Qualified Subchapter determined without regard to any lapse determined not less frequently than S Subsidiary under section 1361(b)(3). restriction as defined at § 1.83–3(i)). every three years, based on the S (4) Number of synthetic shares—(i) (iii) Other synthetic equity—(A) corporation share value on a Synthetic equity determined by General rule. In the case of any determination date that is not later than reference to S corporation shares. In the synthetic equity to which neither the third anniversary of the identified case of synthetic equity that is paragraph (f)(4)(i) nor paragraph (f)(4)(ii) determination date and the aggregate determined by reference to shares of of this section apply, the person who is present value of the synthetic equity to stock of the S corporation, the person entitled to the synthetic equity is treated which this paragraph (f)(4)(iii) applies who is entitled to the synthetic equity as owning on any date a number of (including all grants made during the is treated as owning the number of shares of stock in the S corporation three-year period) on that determination shares of stock deliverable pursuant to equal to the present value (on that date) date. See Example 3 of paragraph (h) of such synthetic equity. In the case of of the synthetic equity (with such value this section for an example illustrating synthetic equity that is determined by determined without regard to any lapse this paragraph (f)(4)(iii)(B)(2). reference to shares of stock of the S restriction as defined at § 1.83–3(i)) (3) Conditions for application of rules. corporation, but for which payment is divided by the fair market value of a Paragraph (f)(4)(iii)(B) of this section made in cash or other property (besides share of the S corporation’s stock as of only applies with respect to grants of stock of the S corporation), the number that date. synthetic equity to which this paragraph of shares of synthetic equity treated as (B) Special rules—(1) Use of annual (f)(4)(iii) applies. In addition, paragraph owned is equal to the number of shares or more frequent determination dates. (f)(4)(iii)(B)(1) of this section applies of stock having a fair market value equal For purposes of this paragraph (f)(4)(iii), only if the fair market value of a share to the cash or other property while the determination of whether of the S corporation securities on any (disregarding lapse restrictions as there is a nonallocation year depends on determination date is not described in § 1.83–3(i)). Where such day-by-day determinations under synthetic equity is a right to purchase or paragraph (c) of this section, the number unrepresentative of the value of the S receive S corporation shares, the of shares of S corporation stock treated corporation securities throughout the corresponding number of shares of as owned by a person who is entitled to rest of the plan year and only if the synthetic equity is determined without synthetic equity to which this paragraph terms of the ESOP include provisions regard to lapse restrictions as described (f)(4)(iii) applies is permitted to be conforming to paragraph (f)(4)(iii)(B)(1) in § 1.83–3(i) or to any amount required determined only annually (or more of this section which are consistently to be paid in exchange for the shares. frequently), as of the first day of the used by the ESOP for all persons. In Thus, for example, if a corporation ESOP’s plan year or as of any other addition, paragraph (f)(4)(iii)(B)(2) of grants an employee of an S corporation reasonable determination date or dates this section applies only if the terms of an option to purchase 100 shares of the during a plan year. If the ESOP so the ESOP include provisions corporation’s stock, exercisable in the provides, the number of shares of conforming to paragraphs (f)(4)(iii)(B)(1) future only after the satisfaction of synthetic equity to which this paragraph and (2) of this section which are certain performance conditions, the (f)(4)(iii) applies that are treated as consistently used by the ESOP for all employee is the deemed owner of 100 owned by that person for any period persons. synthetic equity shares of the from a given determination date through (iv) Adjustment of number of corporation as of the date the option is the date immediately preceding the next synthetic equity shares where ESOP granted. If the same employee were following determination date is the owns less than 100% of S corporation. granted 100 shares of restricted S number of shares treated as owned on Under this paragraph (f)(4)(iv), the corporation stock (or restricted stock the given determination date. number of synthetic shares otherwise units), subject to forfeiture until the (2) Use of triannual recalculations. In determined under this paragraph (f)(4) satisfaction of performance or service addition, if the terms of the ESOP so is decreased ratably to the extent that conditions, the employee would provide, then the number of shares of shares of the S corporation are owned likewise be the deemed owner of 100 synthetic equity with respect to grants by a person who is not an ESOP (and synthetic equity shares from the grant of synthetic equity to which this who is subject to Federal income taxes). date. However, if the same employee paragraph (f)(4)(iii) applies may be fixed For example, if an S corporation has 200 were granted a stock appreciation right for a specified period from a outstanding shares, of which individual with regard to 100 shares of S determination date identified under the A owns 50 shares and the ESOP owns corporation stock (whether payable in ESOP through a date that is not later the other 150 shares, and individual B stock or in cash), the number of than the day before the determination would be treated under this paragraph synthetic equity shares the employee is date that is on or immediately preceding (f)(4) as owning 200 synthetic equity deemed to own equals the number of the third anniversary of the identified shares of the S corporation but for this shares having a value equal to the determination date. Additional accruals, paragraph (f)(4)(iv), then, under the rule appreciation at the time of measurement allocations, or grants (to which this of this paragraph (f)(4)(iv), the number (determined without regard to lapse paragraph (f)(4)(iii) applies) that are of synthetic shares treated as owned by restrictions). made during such three-year period are B under this paragraph (f)(4) is (ii) Synthetic equity determined by taken into account on each decreased from 200 to 150 (because the reference to shares in a related entity. In determination date during that period, ESOP only owns 75% of the outstanding
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stock of the S corporation, rather than equity constitutes an avoidance or held for the benefit of that individual or 100%). evasion of section 409(p) is determined individuals on a tax-deferred basis (v) Special rule for shares with greater by taking into account all the within an entity related to the S voting power than ESOP shares. surrounding facts and circumstances, corporation, such as a partnership, trust, Notwithstanding any other provision of including all features of the ownership or corporation (such as in a subsidiary this paragraph (f)(4), if a synthetic of the S corporation’s outstanding stock that is a disregarded entity), or any other equity right includes (directly or and related obligations (including method that has the same effect of indirectly) a right to purchase or receive synthetic equity), any shareholders who segregating profits for the benefit of shares of S corporation stock that have are taxable entities, and the cash such individual or individuals (such as per-share voting rights greater than the distributions made to shareholders, to nonqualified deferred compensation per-share voting rights of one or more determine whether, to the extent of the described in paragraph (f)(2)(iv) of this shares of S corporation stock held by the ESOP’s stock ownership, the ESOP section); ESOP, then the number of shares of receives the economic benefits of (ii) The individual or individuals for deemed owned synthetic equity ownership in the S corporation that whom profits are segregated have rights attributable to such right is not less than occur during the period that stock of the to acquire 50 percent or more of those the number of shares that would have S corporation is owned by the ESOP. profits directly or indirectly (for the same voting rights if the shares had Among the factors indicating that the example, by purchase of the subsidiary); the same per-share voting rights as ESOP receives these economic benefits and shares held by the ESOP with the least include shareholder voting rights, the (iii) A nonallocation year would occur voting rights. For example, if shares of right to receive distributions made to if this section were separately applied S corporation stock held by the ESOP shareholders, and the right to benefit with respect to either the separate entity have one voting right per share, then an from the profits earned by the S or whatever method has the effect of individual who holds an option to corporation, including the extent to segregating profits of the individual or purchase one share with 100 voting which actual distributions of profits are individuals, treating such entity as a rights is treated as owning 100 shares of made from the S corporation to the separate S corporation owned by an synthetic equity. ESOP and the extent to which the ESOP (or in the case of any other (g) Avoidance or evasion of section ESOP’s ownership interest in method of segregation of profits by 409(p) involving synthetic equity—(1) undistributed profits and future profits treating those profits as the only assets General rule. Paragraph (g)(2) of this is subject to dilution as a result of of a separate S corporation owned by an section sets forth a standard for synthetic equity, for example, the ESOP). determining whether the principal ESOP’s ownership interest is not subject (h) Examples. The rules of this section purpose of the ownership structure of to dilution if the total amount of are illustrated by the following an S corporation involving synthetic synthetic equity is a relatively small examples: equity constitutes an avoidance or portion of the total number of shares evasion of section 409(p). Paragraph and deemed-owned shares of the S Example 1. Relating to determination of (g)(3) of this section identifies certain disqualified persons and nonallocation year corporation. if there is no synthetic equity. (i) Facts. specific ownership structures that (3) Specific transactions that Corporation X is a calendar year S constitute an avoidance or evasion of constitute an avoidance or evasion of corporation that maintains an ESOP. X has a section 409(p). See also paragraph (c)(3) section 409(p) involving segregated single class of common stock, of which there of this section for a rule under which profits. Taking into account the are a total of 1,200 shares outstanding. X has the ownership structures in paragraph standard in paragraph (g)(2) of this no synthetic equity. In 2006, individual A, (g)(3) result in a nonallocation year for section, the principal purpose of the who is not an employee of X (and is not purposes of section 409(p). ownership structure of an S corporation related to any employee of X), owns 100 (2) Standard for determining when constitutes an avoidance or evasion of shares directly, individual B owns 100 shares there is an avoidance or evasion of section 409(p) in any case in which— directly, and the remaining 1,000 shares are owned by an ESOP maintained by X for its section 409(p) involving synthetic (i) The profits of the S corporation employees. The ESOP’s 1,000 shares are equity— For purposes of section 409(p) generated by the business activities of a allocated to the accounts of individuals who and this section, whether the principal specific individual or individuals are are employees of X (none of whom are purpose of the ownership structure of not provided to the ESOP, but are related), as set forth in columns 1 and 2 in an S corporation involving synthetic instead substantially accumulated and the following table:
1 2 3 4 Shareholders Deemed-owned ESOP shares Percentage deemed-owned Disqualified (total of 1,000) ESOP shares person
B ...... 330 ...... 33 ...... Yes. C ...... 145 ...... 14.5 ...... Yes. D ...... 75 ...... 7.5 ...... No. E ...... 30 ...... 3 ...... No. F ...... 20 ...... 2 ...... No. Other participants ...... 400 (none exceed 10 shares) ...... 1 or less ...... No.
(ii) Conclusion with respect to disqualified (iii) Conclusion with respect to owned ESOP shares equal only 47.9% of the persons. As shown in column 4 in the table nonallocation year. However, 2006 is not a 1,200 outstanding shares of X). above, individuals B and C are disqualified nonallocation year under section 409(p) Example 2. Relating to determination of persons for 2006 under paragraph (d)(1) of because disqualified persons do not own at disqualified persons and nonallocation year this section because each owns at least 10% least 50% of X’s outstanding shares (the 100 if there is synthetic equity. (i) Facts. The facts of X’s deemed-owned ESOP shares. shares owned directly by B, B’s 330 deemed- are the same as in Example 1, except that, as owned ESOP shares, plus C’s 145 deemed- shown in column 4 of the table in this
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example 2, individuals E and F have options to acquire 110 and 130 shares, respectively, of the common stock of X from X:
1 2 3 4 5 6 Shareholders Deemed-owned Percentage Options Shareholder percentage of Disqualified ESOP shares deemed-owned (240) deemed-owned ESOP plus person (total of 1,000) ESOP shares synthetic equity shares
B ...... 330 ...... 33 ...... Yes (col. 3). C ...... 145 ...... 14.5 ...... Yes (col. 3). D ...... 75 ...... 7.5 ...... No. E ...... 30 ...... 3 ...... 110 11.1% ([30 + 91.7] divided Yes (col. 5). by 1,091.7). F ...... 20 ...... 2 ...... 130 11.6% ([20 + 108.3] divided Yes (col. 5). by 1,108.3). Other participants ...... 400 (none exceeds 10 1 or less ...... No. shares).
(ii) Conclusion with respect to disqualified person’s ownership of shares. Accordingly, shares because the 100 shares owned directly persons. Applying the rule of paragraph individuals B, C, E, and F are disqualified by B, B’s 330 deemed-owned ESOP shares, (f)(4)(iv) of this section, E’s option to acquire persons for 2006. C’s 145 deemed-owned ESOP shares, E’s 30 110 shares of the S corporation converts into (iii) Conclusion with respect to deemed-owned ESOP shares, plus F’s 20 91.7 shares of synthetic equity (110 times the nonallocation year. The 100 shares owned deemed-owned ESOP shares equal 52.1% of ratio of the 1,000 deemed-owned ESOP directly by B, B’s 330 deemed-owned ESOP the 1,200 outstanding shares of X. shares to the sum of the 1,000 deemed-owned shares, C’s 145 deemed-owned ESOP shares, ESOP shares plus the 200 shares held outside E’s 30 deemed-owned ESOP shares, E’s 91.7 Example 3. Relating to determination of the ESOP by A and B). Similarly, F’s option synthetic equity shares, F’s 20 deemed- number of shares of synthetic equity. (i) to acquire 130 shares of the S corporation owned ESOP shares, plus F’s 108.3 synthetic Facts. Corporation Y is a calendar year S converts into 108.3 shares of synthetic equity equity shares total 825, which equals 58.9% corporation that maintains an ESOP. Y has a (130 times the ratio of the 1,000 deemed- of 1,400, which is the sum of the 1,200 single class of common stock, of which there owned ESOP shares to the sum of the 1,000 outstanding shares of X and the 200 shares are a total of 1,000 shares outstanding, all of deemed-owned ESOP shares plus the 200 of synthetic equity shares of X held by which are owned by the ESOP. Y has no shares held outside the ESOP by A and B). disqualified persons. Thus, 2006 is a synthetic equity, except for four grants of Accordingly, as shown in column 6 in the nonallocation year for X’s ESOP under nonqualified deferred compensation that are table above, individual E’s synthetic equity section 409(p) because disqualified persons made to an individual during the period from shares are counted in determining whether E own at least 50% of the total shares of is a disqualified person for 2006, and outstanding stock of X and the total synthetic 2005 through 2011, as set forth in column 2 individual F’s synthetic equity shares are equity shares of X held by disqualified in the following table, and the ESOP uses the counted in determining whether F is a persons. In addition, independent of the special rules in paragraph (f)(4)(iii) of this disqualified person for 2006, but the preceding conclusion, 2006 would be a section to determine the number of shares of synthetic equity shares owned by any person nonallocation year because disqualified synthetic equity owned by that individual, as do not affect the calculation for any other persons own at least 50% of X’s outstanding shown in columns 4 and 5:
1 2 3 4 5 Determination date Present value of nonqualified deferred compenstion Share value on New shares of Aggregate determination date synthetic number of equity on synthetic determination equity shares
January 1, 2005 ...... A grant is made on January 1, 2005 with a present $10 per share ...... 100 100 value of $1,000. An additional grant of non- qualified deferred compensation with a present value of $775 is made on March 1, 2005. January 1, 2006 ...... An additional grant is made on December 31, 2005 $8 per share ...... 200 300 which has a present value of $800 on January 1, 2006. The March 1, 2005 grant has a present value on January 1, 2006 of $800. January 1, 2007 ...... No new grants made ...... $12 per share ...... 300 January 1, 2008 ...... An additional grant is made on December 31, 2007 $15 per share ...... 200 450 which has a present value of $3,000 on January 1, 2008. The grants made during 2005 through 2007 have an aggregate present value on Janu- ary 1, 2008 of $3,750. January 1, 2009 ...... No new grants are made ...... $11 per share ...... 450 January 1, 2010 ...... No new grants are made ...... $22 per share ...... 450 January 1, 2011 ...... No new grants are made. The grants made during $20 per share ...... 380 2005 through 2008 have an aggregate present value on January 1, 2011 of $7,600.
(ii) Conclusion. The grant made on January until the 2006 determination date and its shares that are based on the $8 per share 1, 2005, is treated as 100 shares until the present value on that date, along with the value on the 2006 determination date, with determination date in 2008. The grant made then present value of the grant made on the the resulting number of shares continuing to on March 1, 2005, is not taken into account preceding day, is treated as a number of apply until the determination date in 2008.
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On the January 1, 2008, determination date, (1) All interests in the entity held by from the first day of the first plan year the grant made on the preceding day is taken individuals who would be disqualified beginning on or after January 1, 2005 into account at its present value of $3,000 on persons under paragraph (g)(3) of this through June 30, 2005 if that person January 1, 2008 and the $15 per share value section or under guidance issued by the would not be a disqualified person on that date with the resulting number of shares (200) continuing to apply until the Commissioner before March 15, 2004 during that period under the modified next determination date. In addition, on the are distributed to those individuals as rules of this paragraph (i)(2)(iii)(B) as of January 1, 2008, determination date, the compensation on or before March 15, any date during that same period. number of shares determined under other 2004 and Further, solely for the purpose of grants made between January 1, 2005 and (2) No such individual has been a determining whether the first plan year December 31, 2007, must be revalued. participant in the ESOP of the S beginning on or after January 1, 2005 is Accordingly, the aggregate value of all corporation at any time after October 20, a nonallocation year under section nonqualified deferred compensation granted 2003 and before March 15, 2004. 409(p) and this section, if that plan year during that period is determined to be $3750 (C) Paragraph (f)(2)(iv)(B) of this on January 1, 2008, and the corresponding would not have been a nonallocation number of shares of synthetic equity based section (providing that synthetic equity year under the modified rules of this on the $15 per share value is determined to does not include certain preexisting paragraph (i)(2)(iii)(B), then synthetic be 250 shares on the 2008 determination nonqualified deferred compensation) equity that is not owned by a person on date, with the resulting aggregate number of applies for plan years ending before July 1, 2005 is disregarded during the shares (450) continuing to apply until the January 1, 2005. period from the first day of the first plan determination date in 2011. On the January (D) Paragraph (f)(4)(iv) of this section year beginning on or after January 1, 1, 2011, determination date, the aggregate (permitting an adjustment of the number 2005 through June 30, 2005. For value of all nonqualified deferred of synthetic equity shares where an purposes of this paragraph (i)(2)(iii)(B), compensation is determined to be $7,600 and ESOP owns less than 100% of an S the corresponding number of shares of the modified rules of this paragraph synthetic equity based on the $20 per share corporation) applies for plan years (i)(2)(iii)(B) are the rules in § 1.409(p)– value on the 2011 determination date is ending before January 1, 2005. 1T as in effect prior to December 17, determined to be 380 shares (with the (E) In no event does this paragraph 2004 (see § 1.409(p)–1T in 26 CFR Part resulting number of shares continuing to (i)(2)(ii) apply for any plan year ending 1 revised as of April 1, 2004), modified apply until the determination date in 2014, before January 1, 2005, for an ESOP to exclude from the definition of assuming no further grants are made). holding stock in an S corporation that synthetic equity any stock option, stock (i) Effective dates—(1) Statutory was established on or before March 14, appreciation right (payable in cash or effective date. (i) Except as otherwise 2001, if the election under section stock), or similar rights with respect to provided in paragraph (i)(1)(ii) of this 1362(a) with respect to that S shares of the S corporation or a related section, section 409(p) applies for plan Corporation was in effect on March 14, entity where the facts and years ending after March 14, 2001. 2001. circumstances indicate that there is no (ii) If an ESOP holding stock in an S (iii) Transition rules. (A) Assets held reasonable likelihood that the holder of corporation was established on or before in the account of a disqualified person the right will receive the shares (or March 14, 2001, and the election under as of the last day of the first plan year equivalent value). For this purpose, section 1362(a) with respect to that S beginning before January 1, 2005, will there is no reasonable likelihood that corporation was in effect on March 14, not be treated as an impermissible the holder of the right will receive the 2001, section 409(p) applies for plan accrual with respect to that disqualified shares (or equivalent value) in any case years beginning on or after January 1, person under paragraph (b)(2)((ii) of this in which the option is based on an 2005. section for the first plan year beginning exercise price that is more than 200% of (2) Regulation effective date—(i) on or after January 1, 2005, to the extent the fair market value of the shares on General effective date. Except as those assets are not held in that person’s the date of grant or the right (in the case otherwise provided in paragraph account on or after July 1, 2005. Thus, of a stock appreciation right or similar (i)(2)(ii) of this section, this section for example, to the extent the assets right to acquire shares of the S applies for plan years beginning on or allocated to the account of a disqualified corporation or a related entity) is after January 1, 2005. person as of the last day of the first plan payable only if the appreciation exceeds (ii) Rules for plan years beginning year beginning before January 1, 2005, 100% of the fair market value of the before January 1, 2005. (A) Except as are transferred to a non-ESOP portion of shares on the date of grant. provided in this paragraph (i)(2)(ii), the plan as described in paragraph § 1.409(p)–1T as in effect prior to (b)(2)(v)(A) of this section before July 1, (C) For the period from the first day December 17, 2004 (see § 1.409(p)–1T in 2005, those assets will not be treated as of the first plan year beginning on or 26 CFR part 1 revised as of April 1, an impermissible accrual under after January 1, 2005 through June 30, 2004) applies for plan years ending after paragraph (b)(2)((ii) of this section for 2005, there is no nonallocation year October 20, 2003, and beginning before the period from the first day of the first under this section if there would be no January 1, 2005. plan year beginning on or after January nonallocation year under this section (B) Paragraphs (c)(3) and (g) of this 1, 2005 through June 30, 2005. However, during that period if this section were section apply for plan years ending on see section 4979A(a)(3), (a)(4), and applied without regard to paragraph or after December 31, 2004, but do not (e)(2)(C) for excise tax provisions that (f)(4)(v) of this section (relating to voting apply with respect to an interest held in apply to all deemed-owned shares rights). a qualified subchapter S subsidiary during the first nonallocation year for (D) This paragraph (iii) does not apply (QSUB) of an S corporation or another the ESOP. to an ESOP for which the first plan year entity to which paragraph (g)(3) of this (B) An individual is not treated as a beginning on or after January 1, 2005 section applies before March 15, 2004 if: disqualified person during the period begins after June 30, 2005.
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Approved: December 7, 2004. Management, tel. 202/622–2500, Chief terrorism; ongoing efforts to destabilize Mark M. Matthews, of Licensing, tel.: 202/622–2480, Chief neighboring governments; and the Deputy Commissioner for Services and of Compliance, tel. 202/622–2490, or prevalence of human rights violations, Enforcement. Chief Counsel, tel.: 202/622–2410, including slavery and the denial of Gregory F. Jenner, Office of Foreign Assets Control, religious freedom.’’ To deal with this Acting Assistant Secretary of the Treasury Department of the Treasury, national emergency, Executive Order (Tax Policy). Washington, DC 20220 (not toll free 13067 imposed trade sanctions with [FR Doc. 04–27294 Filed 12–16–04; 8:45 am] numbers). respect to Sudan and blocked all property and interests in property of the BILLING CODE 4830–01–P SUPPLEMENTARY INFORMATION: Government of Sudan in the United Electronic and Facsimile Availability States or within the possession or DEPARTMENT OF THE TREASURY This file is available for download control of U.S. persons. The Iranian Transactions Regulations, without charge in ASCII and Adobe 31 CFR part 560 (the ‘‘ITR’’), implement Office of Foreign Assets Control Acrobat readable (*.PDF) formats at a series of Executive orders, beginning GPO Access. GPO Access supports with Executive Order 12957, issued on 31 CFR Parts 515, 538 and 560 HTTP, FTP, and Telnet at March 15, 1995. In that order, the fedbbs.access.gpo.gov. It may also be Cuban Assets Control Regulations, President declared a national emergency Sudanese Sanctions Regulations, and accessed by modem dialup at 202/512– pursuant to IEEPA to deal with the Iranian Transactions Regulations 1387 followed by typing ‘‘/GO/FAC.’’ unusual and extraordinary threat to the Paper copies of this document can be national security, foreign policy, and AGENCY: Office of Foreign Assets obtained by calling the Government economy of the United States Control, Treasury. Printing Office at 202/512–1530. This constituted by the actions and policies ACTION: Final rule. document and additional information of the Government of Iran, including its concerning the programs of the Office of SUMMARY: The Office of Foreign Assets support for international terrorism, its Foreign Assets Control are available for efforts to undermine the Middle East Control (‘‘OFAC’’) of the U.S. downloading from the Office’s Internet Department of the Treasury is revising peace process and its efforts to acquire Home Page: http://www.treas.gov/ofac, weapons of mass destruction and the the Cuban Assets Control Regulations, or via FTP at ofacftp.treas.gov. the Sudanese Sanctions Regulations, means to deliver them. To deal with this Facsimiles of information are available threat, Executive Order 12957 imposed and the Iranian Transactions through the Office’s 24-hour fax-on- Regulations to add general licenses prohibitions on certain transactions demand service: call 202/622–0077 with respect to the development of pertaining to certain publishing using a fax machine, fax modem, or activities. Iranian petroleum resources. On May 6, (within the United States) a touch-tone 1995, the President issued Executive DATES: Effective Date: December 17, telephone. Order 12959 imposing comprehensive 2004. Comments may be submitted at Background trade sanctions to further respond to any time. this threat, and on August 19, 1997, the ADDRESSES: You may submit comments The Cuban Assets Control President issued Executive Order 13059 by any of the following methods: Regulations, 31 CFR part 515 (the consolidating and clarifying the • Federal eRulemaking Portal: ‘‘CACR’’), were issued by the U.S. previous orders. http://www.regulations.gov. Follow the Government on July 8, 1963, under the The Treasury Department’s Office of instructions for submitting comments. Trading with the Enemy Act (50 U.S.C. Foreign Assets Control (‘‘OFAC’’) is • Agency Web Site: http:// App. 5 et seq.) (TWEA), in response to amending the CACR, SSR and ITR to www.treas.gov/offices/enforcement/ certain hostile actions by the Cuban authorize certain activities relating to ofac/comment.html. Government. Since that time, U.S. publishing that otherwise entail the • Fax: Chief of Records, 202/622– policy toward Cuba has been to prohibited exportation of services to, or 1657. encourage a rapid and peaceful prohibited importation of services from, • Mail: Chief of Records, ATTN: transition to democracy. The TWEA Cuba, Sudan or Iran. Request for Comments, Office of Foreign sanctions are intended to isolate the With certain exceptions, the Assets Control, Department of the Cuban Government economically and exportation and importation of Treasury, 1500 Pennsylvania Avenue, deprive it of U.S. dollars that the Cuban information and informational materials NW., Washington, DC 20220. Government would otherwise use to to or from any country are exempt from Instructions: All submissions received maintain or strengthen its repressive regulation by the President under must include the agency name and the apparatus, enforce its information TWEA and IEEPA. See 50 U.S.C. App. FR Doc. number that appears at the end blockade on the Cuban people, and 5(b)(4) and 50 U.S.C. 1702(b)(3), of this document. Comments received arrange for a succession and the respectively. OFAC is issuing the new will be posted without change to continuation of the totalitarian general licenses set forth at 31 CFR http://www.treas.gov/ofac, including Communist government. 515.577, 31 CFR 538.529 and 31 CFR any personal information provided. For The Sudanese Sanctions Regulations, 560.538 to authorize transactions not detailed instructions on submitting 31 CFR part 538 (the ‘‘SSR’’), implement already exempt from regulation that comments and additional information Executive Order 13067, issued on directly support the publishing and on the rulemaking process, see the November 3, 1997, pursuant to, inter marketing of manuscripts, books, ‘‘Public Participation’’ heading of the alia, the International Emergency journals, and newspapers, in paper or SUPPLEMENTARY INFORMATION section of Economic Powers Act (50 U.S.C. 1701– electronic format. this document. To read background 1706) (IEEPA). In the order, the Each of the general licenses is similar documents or comments received, go to President declared a national emergency in structure and scope, authorizing a http://www.treas.gov/ofac. with respect to the policies and actions variety of activities relating to FOR FURTHER INFORMATION CONTACT: of the Government of Sudan, ‘‘including publishing with appropriate exceptions, Chief of Policy Planning and Program continued support for international such as those for the governments of
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each of the sanctioned countries. List of Subjects the parties to the transactions described Section 515.545, a pre-existing general in this paragraph include the 31 CFR Part 515 license pertaining to information and Government of Cuba. For the purposes informational materials remains in Administrative practice and of this section, the term ‘‘Government of effect, but is being revised to include a procedure, Cuba, Exports, Foreign trade, Cuba’’ includes the state and the note referring to the further Imports, Information. Government of Cuba, as well as any authorizations contained in § 515.577. 31 CFR Part 538 political subdivision, agency, or instrumentality thereof, including the Public Participation Administrative practice and Central Bank of Cuba; any person procedure, Exports, Foreign trade, occupying the positions identified in Because the amendment of the CACR, Imports, Information, Sudan. § 515.570(a)(3); employees of the ITR and SSR involves a foreign affairs 31 CFR Part 560 Ministry of Justice; and any person function, the provisions of Executive acting or purporting to act directly or Order 12866 and the Administrative Administrative practice and indirectly on behalf of any of the Procedure Act (5 U.S.C. 553) (the procedure, Exports, Foreign trade, foregoing with respect to the ‘‘APA’’) requiring notice of proposed Imports, Information, Iran. transactions described in this paragraph. rulemaking, opportunity for public I For the reasons set forth in the For the purposes of this section, the participation, and delay in effective Preamble, 31 CFR parts 515, 538 and 560 term ‘‘Government of Cuba’’ does not date, are inapplicable. Because no are amended as follows: include any academic and research notice of proposed rulemaking is institutions and their personnel. required for this rule, the Regulatory PART 515—CUBAN ASSETS Pursuant to this section, the following Flexibility Act (5 U.S.C. 601–612) does CONTROL REGULATIONS activities are not prohibited, provided not apply. However, OFAC encourages I 1. The authority citation for part 515 that persons subject to the jurisdiction interested persons who wish to continues to read as follows: of the United States ensure that they are comment to do so in writing. The not engaging, without specific address for submitting comments Authority: 18 U.S.C. 2332d; 22 U.S.C. authorization, in the activities identified 2370(a), 6001–6010; 31 U.S.C. 321(b); 50 in paragraph (d) of this section: appears in the ADDRESSES section near U.S.C. App 1–44; Pub. L. 101–410, 104 Stat. the beginning of this document. OFAC 890 (28 U.S.C. 2461 note); Pub. L. 106–387, (1) Commissioning and making will not accept public comments written 114 Stat. 1549; E.O. 9193, 7 FR 5205, 3 CFR, advance payments for identifiable in languages other than English or 1938–1943 Comp., p. 1147; E.O. 9989, 13 FR written publications not yet in accompanied by a request that a part or 4891, 3 CFR, 1943–1948 Comp., p. 748; Proc. existence, to the extent consistent with all of the submission be treated 3447, 27 FR 1085, 3 CFR, 1959–1963 Comp., industry practice; p. 157; E.O. 12854, 58 FR 36587, 3 CFR, 1993 (2) Collaborating on the creation and confidentially because of its business Comp., p. 614. proprietary nature or for any other enhancement of written publications; (3) Augmenting written publications reason. OFAC will return such Subpart E—Licenses, Authorizations, through the addition of items such as submissions to the originator. All public and Statements of Licensing Policy photographs, artwork, translation, and comments on these regulations will be explanatory text; a matter of public record. Copies of the I 2. Section 515.545 is amended by (4) Substantive editing of written public record concerning these adding a note at the end of the section to read as follows: publications; regulations will be made available not (5) Payment of royalties for written sooner than March 17, 2005, and will be § 515.545 Transactions related to publications; obtainable from OFAC’s Internet Home information and informational materials. (6) Creating or undertaking a Page at http://www.treas.gov/ofac. If that * * * * * marketing campaign to promote a service is unavailable, written requests Note to § 515.545. With respect to written publication; and for copies may be sent to Office of transactions necessary and ordinarily (7) Other transactions necessary and Foreign Assets Control, U.S. Department incident to the publishing and marketing of ordinarily incident to the publishing of the Treasury, 1500 Pennsylvania manuscripts, books, journals and and marketing of written publications as Ave., NW., Washington, DC 20220, Attn: newspapers, see § 515.577. described in this paragraph (a). Chief, Records Division. I 3. Add a new § 515.577 to subpart E to (b) This section does not authorize transactions involving the provision of Paperwork Reduction Act read as follows: goods or services not necessary and The collections of information related § 515.577 Authorized transactions ordinarily incident to the publishing to 31 CFR parts 31 CFR parts 560 and necessary and ordinarily incident to and marketing of written publications as 538 are contained in 31 CFR part 501 publishing. described above. For example, this (the ‘‘Reporting, Procedures and (a) To the extent that such activities section does not authorize persons Penalties Regulations’’). Pursuant to the are not exempt from this part, and subject to the jurisdiction of the United Paperwork Reduction Act of 1995 (44 subject to the restrictions set forth in States: U.S.C. 3507), those collections of paragraphs (b) through (d) of this (1) To provide or receive information have been approved by the section, persons subject to the individualized or customized services jurisdiction of the United States are (including, but not limited to, Office of Management and Budget under authorized to engage in all transactions accounting, legal, design, or consulting control number 1505–0164. An agency necessary and ordinarily incident to the services), other than those necessary may not conduct or sponsor, and a publishing and marketing of and ordinarily incident to the person is not required to respond to, a manuscripts, books, journals, and publishing and marketing of written collection of information unless the newspapers (collectively, ‘‘written publications, even though such collection of information displays a publications’’), in paper or electronic individualized or customized services valid control number. format. This section does not apply if are delivered through the use of
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information and informational the ITAR, or exchanges of information (2) Collaborating on the creation and materials; that are subject to regulation by other enhancement of written publications; (2) To create or undertake for any government agencies. (3) Augmenting written publications person a marketing campaign with (e) Specific licenses may be issued on through the addition of items such as respect to any service or product other a case-by-case basis authorizing the photographs, artwork, translation, and than a written publication, or to create travel-related transactions set forth in explanatory text; or undertake a marketing campaign of § 515.560(c) for purposes necessary and (4) Substantive and artistic editing of any kind for the benefit of the ordinarily incident to the publishing written publications; Government of Cuba; and marketing of written publications. (5) Payment of royalties for written (3) To engage in the exportation or publications; importation of goods, other than PART 538—SUDANESE SANCTIONS (6) Creating or undertaking a information and informational REGULATIONS marketing campaign to promote a materials, to or from Cuba; written publication; and (4) To operate a publishing house, I 4. The authority citation for part 538 (7) Other transactions necessary and sales outlet, or other office in Cuba; or continues to read as follows: ordinarily incident to the publishing (5) To engage in transactions related Authority: 3 U.S.C. 301; 31 U.S.C. 321(b); and marketing of written publications as to travel to, from and within Cuba. 18 U.S.C. 2339B, 2332d; 50 U.S.C. 1601– described in this paragraph (a). (c) This section does not authorize 1651, 1701–1706; Pub. L. 106–387, 114 Stat. (b) This section does not authorize persons subject to the jurisdiction of the 1549; E.O. 13067, 62 FR 59989; 3 CFR, 1997 transactions involving the provision of United States to engage the services of Comp., p. 230. goods or services not necessary and publishing houses or translators in Cuba ordinarily incident to the publishing unless such activity is primarily for the Subpart E—Licenses, Authorizations, and marketing of written publications as dissemination of written publications in and Statements of Licensing Policy described above. For example, this Cuba. (d) This section does not authorize: I 5. Add a new § 538.529 to subpart E to section does not authorize U.S. persons: (1) Transactions for the development, read as follows: (1) To provide or receive production, design, or marketing of individualized or customized services § 538.529 Authorized transactions software; (including, but not limited to, necessary and ordinarily incident to accounting, legal, design, or consulting (2) Transactions for the development, publishing. production, design, or marketing of services), other than those necessary technology specifically controlled by (a) To the extent that such activities and ordinarily incident to the the International Traffic in Arms are not exempt from this part, and publishing and marketing of written Regulations, 22 CFR parts 120 through subject to the restrictions set forth in publications, even though such 130 (ITAR), the Export Administration paragraphs (b) through (d) of this individualized or customized services Regulations, 15 CFR parts 730 through section, U.S. persons are authorized to are delivered through the use of 774 (EAR), or the Department of Energy engage in all transactions necessary and information and informational Regulations set forth at 10 CFR part 810. ordinarily incident to the publishing materials; (3) The exportation of information or and marketing of manuscripts, books, (2) To create or undertake for any technology subject to the authorization journals, and newspapers (collectively, person a marketing campaign with requirements of 10 CFR part 810, or ‘‘written publications’’), in paper or respect to any service or product other Restricted Data as defined in section 11 electronic format. This section does not than a written publication, or to create y. of the Atomic Energy Act of 1954, as apply if the parties to the transactions or undertake a marketing campaign of amended, or of other information, data, described in this paragraph include the any kind for the benefit of the or technology the release of which is Government of Sudan. For the purposes Government of Sudan; controlled under the Atomic Energy Act of this section, the term ‘‘Government of (3) To engage in the exportation or and regulations therein; Sudan’’ includes the state and the importation of goods, other than (4) The exportation of information Government of Sudan, as well as any information and informational subject to license application political subdivision, agency, or materials, to or from Sudan; or requirements under the EAR. These instrumentality thereof, including the (4) To operate a publishing house, EAR license application requirements Central Bank of Sudan; and any person sales outlet, or other office in Sudan. cover not only the exportation of acting or purporting to act directly or (c) This section does not authorize information controlled on the indirectly on behalf of any of the U.S. persons to engage the services of Commerce Control List, 15 CFR part foregoing with respect to the publishing houses or translators in 774, but also the exportation of any transactions described in this paragraph. Sudan unless such activity is primarily information subject to the EAR where a For the purposes of this section, the for the dissemination of written U.S. person knows or has reason to term ‘‘Government of Sudan’’ does not publications in Sudan. know that the information will be used, include any academic and research (d) This section does not authorize: directly or indirectly, with respect to institutions and their personnel. (1) Transactions for the development, certain nuclear, missile, chemical and Pursuant to this section, the following production, design, or marketing of biological weapons, and nuclear- activities are not prohibited, provided software; maritime end-uses. In addition, U.S. that U.S. persons ensure that they are (2) Transactions for the development, persons are precluded from exporting not engaging, without specific production, design, or marketing of any information subject to the EAR to authorization, in the activities identified technology specifically controlled by certain restricted end-users, as provided in paragraph (d) of this section: the International Traffic in Arms in the Commerce Department’s end-user (1) Commissioning and making Regulations, 22 CFR parts 120 through and end-use based controls set forth at advance payments for identifiable 130 (TAR), the Export Administration 15 CFR part 744; or written publications not yet in Regulations, 15 CFR parts 730 through (5) The exportation of information existence, to the extent consistent with 774 (EAR), or the Department of Energy subject to licensing requirements under industry practice; Regulations set forth at 10 CFR part 810.
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(3) The exportation of information or ‘‘written publications’’), in paper or than a written publication, or to create technology subject to the authorization electronic format. This section does not or undertake a marketing campaign of requirements of 10 CFR part 810, or apply if the parties to the transactions any kind for the benefit of the Restricted Data as defined in section 11 described in this paragraph include the Government of Iran; y. of the Atomic Energy Act of 1954, as Government of Iran. For the purposes of (3) To engage in the exportation or amended, or of other information, data, this section, the term ‘‘Government of importation of goods, other than or technology the release of which is Iran’’ includes the state and the information and informational controlled under the Atomic Energy Act Government of Iran, as well as any materials, to or from Iran; or and regulations therein; political subdivision, agency, or (4) The exportation of information instrumentality thereof, which includes (4) To operate a publishing house, subject to license application the Central Bank of Islamic Republic of sales outlet, or other office in Iran. requirements under the EAR. These Iran; and any person acting or (c) This section does not authorize EAR license application requirements purporting to act directly or indirectly U.S. persons to engage the services of cover not only the exportation of on behalf of any of the foregoing with publishing houses or translators in Iran information controlled on the respect to the transactions described in unless such activity is primarily for the Commerce Control List, 15 CFR part this paragraph. For the purposes of this dissemination of written publications in 774, but also the exportation of any section, the term ‘‘Government of Iran’’ Iran. information subject to the EAR where a does not include any academic and U.S. person knows or has reason to research institutions and their (d) This section does not authorize: know that the information will be used, personnel. Pursuant to this section, the (1) Transactions for the development, directly or indirectly, with respect to following activities are not prohibited, production, design, or marketing of certain nuclear, missile, chemical and provided that U.S. persons ensure that software; biological weapons, and nuclear- they are not engaging, without specific (2) Transactions for the development, maritime end-uses. In addition, U.S. authorization, in the activities identified production, design, or marketing of persons are precluded from exporting in paragraph (d) of this section: technology specifically controlled by (1) Commissioning and making any information subject to the EAR to the International Traffic in Arms certain restricted end-users, as provided advance payments for identifiable Regulations, 22 CFR parts 120 through in the Commerce Department’s end-user written publications not yet in 130 (ITAR), the Export Administration and end-use based controls set forth at existence, to the extent consistent with Regulations, 15 CFR parts 730 through 15 CFR part 744; or industry practice; 774 (EAR), or the Department of Energy (5) The exportation of information (2) Collaborating on the creation and subject to licensing requirements under enhancement of written publications; Regulations set forth at 10 CFR part 810. the ITAR, or exchanges of information (3) Augmenting written publications (3) The exportation of information or that are subject to regulation by other through the addition of items such as technology subject to the authorization government agencies. photographs, artwork, translation, and requirements of 10 CFR part 810, or explanatory text; Restricted Data as defined in section 11 PART 560—IRANIAN TRANSACTIONS (4) Substantive editing of written y. of the Atomic Energy Act of 1954, as REGULATIONS publications; amended, or of other information, data, (5) Payment of royalties for written or technology the release of which is I 6. The authority citation for part 560 publications; controlled under the Atomic Energy Act continues to read as follows: (6) Creating or undertaking a and regulations therein; Authority: 3 U.S.C. 301; 18 U.S.C. 2339B, marketing campaign to promote a 2332d; 22 U.S.C. 2349aa–9; 31 U.S.C. 321(b); written publication; and (4) The exportation of information 50 U.S.C. 1601–1651, 1701–1706; Pub. L. (7) Other transactions necessary and subject to license application 101–410, 104 Stat. 890 (28 U.S.C. 2461 note); ordinarily incident to the publishing requirements under the EAR. These Pub. L. 106–387, 114 Stat. 1549; E.O. 12613, and marketing of written publications as EAR license application requirements 52 FR 41940, 3 CFR, 1987 Comp., p. 256; E.O. described in this paragraph (a). cover not only the exportation of 12957, 60 FR 14615, 3 CFR, 1995 Comp., p. (b) This section does not authorize information controlled on the 332; E.O. 12959, 60 FR 24757, 3 CFR, 1995, transactions involving the provision of Commerce Control List, 15 CFR part Comp., 356; E.O. 13059, 62 FR 44531, 3 CFR, goods or services not necessary and 774, but also the exportation of any 1997 Comp., p. 217. ordinarily incident to the publishing information subject to the EAR where a Subpart E—Licenses, Authorizations, and marketing of written publications as U.S. person knows or has reason to and Statements of Licensing Policy described above. For example, this know that the information will be used, section does not authorize U.S. persons: directly or indirectly, with respect to I 7. Add a new § 560.538 to subpart E to (1) To provide or receive certain nuclear, missile, chemical and read as follows: individualized or customized services biological weapons, and nuclear- (including, but not limited to, maritime end-uses. In addition, U.S. § 560.538 Authorized transactions accounting, legal, design, or consulting necessary and ordinarily incident to persons are precluded from exporting services), other than those necessary any information subject to the EAR to publishing. and ordinarily incident to the certain restricted end-users, as provided (a) To the extent that such activities publishing and marketing of written in the Commerce Department’s end-user are not exempt from this part, and publications, even though such and end-use based controls set forth at subject to the restrictions set forth in individualized or customized services 15 CFR part 744; or paragraphs (b) through (d) of this are delivered through the use of section, U.S. persons are authorized to information and informational (5) The exportation of information engage in all transactions necessary and materials; subject to licensing requirements under ordinarily incident to the publishing (2) To create or undertake for any the ITAR, or exchanges of information and marketing of manuscripts, books, person a marketing campaign with that are subject to regulation by other journals, and newspapers (collectively, respect to any service or product other government agencies.
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Dated: December 10, 2004. address between 8 a.m. and 4 p.m., ENVIRONMENTAL PROTECTION Robert W. Werner, Monday through Friday, except Federal AGENCY Director, Office of Foreign Assets Control. Holidays. The Commander (obr), Fifth Coast Guard District maintains the 40 CFR Part 9 Approved: December 13, 2004. public docket for this test schedule. [FRL–7849–9] Juan C. Zarate, Comments and material received from Assistant Secretary, Terrorist Financing and the public, as well as documents OMB Approvals Under the Paperwork Financial Crimes, Department of the indicated in this preamble as being Reduction Act; Technical Amendment Treasury. available in the docket, will become part [FR Doc. 04–27717 Filed 12–14–04; 5:07 pm] of this docket and will be available for AGENCY: Environmental Protection BILLING CODE 4810–25–P inspection or copying at the above Agency (EPA). address. ACTION: Final rule. Request for Comments DEPARTMENT OF HOMELAND SUMMARY: In compliance with the SECURITY We encourage you to participate in Paperwork Reduction Act (PRA), this this test deviation by submitting technical amendment amends the table Coast Guard comments and related material. If you that lists the Office of Management and do so, please include your name and Budget (OMB) control numbers issued 33 CFR Part 117 address, identify the docket number for under the PRA for Effluent Limitations this test deviation CGD05–04–223, Guidelines and New Source [CGD05–04–223] indicate the specific section of this Performance Standards for the RIN 1625–AA–09 document to which each comment Concentrated Aquatic Animal applies, and give the reason for each Production Point Source Category; Final Drawbridge Operation Regulations; comment. Please submit all comments Rule. Atlantic Intracoastal Waterway (AICW), and related material in an unbound DATES: Effective Date: This final rule is Elizabeth River, Southern Branch, VA 1 format, no larger than 8 ⁄2 by 11 inches, effective December 17, 2004. suitable for copying. If you would like AGENCY: Coast Guard, DHS. FOR FURTHER INFORMATION CONTACT: Ms. to know they reached us, please enclose ACTION: Notice of temporary deviation Marta Jordan at (202) 566–1049. a stamped, self-addressed postcard or from regulations and request for envelope. We will consider all SUPPLEMENTARY INFORMATION: EPA is comments. comments and material received during amending the table of currently approved information collection request SUMMARY: The Commander, Fifth Coast the comment period. (ICR) control numbers issued by OMB Guard District, has issued a temporary FOR FURTHER INFORMATION CONTACT: Bill for various regulations. The amendment deviation from the drawbridge operation Brazier, Bridge Management Specialist, updates the table to list those regulations to test an alternate Fifth Coast Guard District, at (757) 398– information collection requirements drawbridge operation regulation for the 6422. promulgated under the Effluent Dominion Boulevard (US 17) Bridge SUPPLEMENTARY INFORMATION: In an Limitations Guidelines and New Source across the Southern Branch of the effort to ease vehicle traffic congestion Performance Standards for the Elizabeth River, at AICW mile 8.8, at as a result of recent vessel openings of Concentrated Aquatic Animal Chesapeake, Virginia. Under this the drawbridge, the Coast Guard has Production Point Source Category; Final temporary 90-day deviation, from 8:30 issued a temporary deviation from the Rule, which appeared in the Federal a.m. to 4 p.m., Monday through Friday, drawbridge regulations to test for a Register on August 23, 2004 (69 FR except Federal holidays, the draw of the period of 90 days an alternate 51892). The affected regulations are bridge will open every hour on the half drawbridge operation schedule. codified at 40 CFR part 451. EPA will hour. During the temporary deviation, Under this 90-day temporary continue to present OMB control the bridge will continue to open on deviation, effective from December 13, numbers in a consolidated table format signal for commercial vessels that 2004 to March 13, 2005, the Dominion to be codified in 40 CFR part 9 of the provide a two-hour advance notice and Boulevard (US 17) Bridge, mile 8.8 in Agency’s regulations, and in each CFR will open on demand at all times for Chesapeake, shall open on signal for volume containing EPA regulations. The commercial vessels carrying liquefied commercial vessels that provide a two- table lists CFR citations with reporting, flammable gas or other hazardous hour advance notice and will open on recordkeeping, or other information materials. demand at all times for commercial collection requirements, and the current The purpose of this temporary vessels carrying liquefied flammable gas OMB control numbers. This listing of deviation is to test an alternate or other hazardous materials. From the OMB control numbers and their drawbridge operation schedule for 90 December 13, 2004 to March 13, 2005, subsequent codification in the CFR days and solicit comments from the from 8:30 a.m. to 4 p.m., Monday satisfies the requirements of the public. through Friday, except Federal holidays, Paperwork Reduction Act (44 U.S.C. DATES: This deviation is effective from the draw need be opened only every 3501 et seq.) and OMB’s implementing 8:30 a.m. on December 13, 2004, to 4 hour on the half hour. regulations at 5 CFR part 1320. This deviation from the operating p.m. on March 13, 2005. Comments This ICR was previously subject to regulations is authorized under 33 CFR must reach the Coast Guard on or before public notice and comment prior to 117.43. March 14, 2005. OMB approval. Due to the technical ADDRESSES: You may mail comments Dated: December 10, 2004. nature of the table, EPA finds that and related material to Commander Waverly W. Gregory, Jr., further notice and comment is (obr), Fifth Coast Guard District, Federal Chief, Bridge Administration Branch, Fifth unnecessary. As a result, EPA finds that Building, 1st Floor, 431 Crawford Street, Coast Guard District. there is ‘‘good cause’’ under section Portsmouth, Virginia 23704–5004, or [FR Doc. 04–27676 Filed 12–16–04; 8:45 am] 553(b)(B) of the Administrative they may be hand delivered to the same BILLING CODE 4910–15–P Procedure Act, 5 U.S.C. 553(b)(B), to
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amend this table without prior notice effective date of December 17, 2004. ENVIRONMENTAL PROTECTION and comment. EPA will submit a report containing this AGENCY I. Administrative Requirements rule and other required information to the U.S. Senate, the U.S. House of 40 CFR Part 52 Under Executive Order 12866 (58 FR Representatives, and the Comptroller 51735, October 4, 1993), this action is [R04–OAR–2004–KY–0001–200425(a); FRL– General of the United States prior to 7848–9] not a ‘‘significant regulatory action’’ and publication of the rule in the Federal is therefore not subject to review by the Register. This action is not a ‘‘major Approval and Promulgation of Office of Management and Budget. In rule’’ as defined by 5 U.S.C. 804(2). Implementation Plans Kentucky: 1- addition, this action does not impose Hour Ozone Maintenance Plan Update any enforceable duty, contain any List of Subjects in 40 CFR Part 9 for Edmonson Area unfunded mandate, or impose any significant or unique impact on small Environmental protection, Reporting AGENCY: Environmental Protection governments as described in the and recordkeeping requirements. Agency (EPA). Unfunded Mandates Reform Act of 1995 Dated: December 4, 2004. ACTION: Direct final rule. (Public Law 104–4). This rule also does not require prior consultation with Oscar Morales, SUMMARY: Today’s action consists of two State, local, and tribal government Director, Collection Strategies Division, Office distinct but related final rulemakings officials as specified by Executive Order of Information Collection. briefly characterized here and further 12875 (58 FR 58093, October 28, 1993) discussed in the SUPPLEMENTARY or Executive Order 13084 (63 FR 27655 I For the reasons set out in the preamble, INFORMATION section of this rule. First, (May 10, 1998), or involve special 40 CFR part 9 is amended as follows: EPA is approving revisions to the consideration of environmental justice Edmonson County portion of the State related issues as required by Executive PART 9—[AMENDED] Implementation Plan (SIP) submitted by Order 12898 (59 FR 7629, February 16, the Commonwealth of Kentucky, in I 1994). Because this action is not subject 1. The authority citation for part 9 draft form on February 19, 2004, and in to notice-and-comment requirements continues to read as follows: final form on August 24, 2004. The under the Administrative Procedure Act Authority: 7 U.S.C. 135 et seq., 136–136y; August 24, 2004, SIP revision provides or any other statute, it is not subject to 15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; the 10-year update to the original 1-hour the regulatory flexibility provisions of 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 ozone maintenance plans for three 1- the Regulatory Flexibility Act (5 U.S.C. U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, hour ozone maintenance areas, 601 et seq.). This rule also is not subject 1321, 1326, 1330, 1342, 1344, 1345 (d) and including the Edmonson County to Executive Order 13045 (62 FR 19885, (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, Maintenance Area, and also provides April 23, 1997) because EPA interprets 1971–1975 Comp. p. 973; 42 U.S.C. 241, revised 2004 motor vehicle emission Executive Order 13045 as applying only 242b, 243, 246, 300f, 300g, 300g–1, 300g–2, budgets (MVEBs) and establishes 2015 to those regulatory actions that are 300g–3, 300g–4, 300g–5, 300g–6, 300j–1, MVEBs. Through this action, EPA is based on health or safety risks, such that 300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq., providing notification of its the analysis required under section 5– 6901–6992k, 7401–7671q, 7542, 9601–9657, determination that the Edmonson 501 of the Order has the potential to 11023, 11048. County portion of the Commonwealth’s influence the regulation. This rule is not SIP revision satisfies the requirement of subject to Executive Order 13045 I 2. In § 9.1 the table is amended by the Clean Air Act (CAA) as amended in because it does not establish an adding the heading and entry below in 1990 for the 10-year update for the 1- environmental standard intended to numerical order to read as follows: hour ozone maintenance plan for mitigate health or safety risks. EPA’s Edmonson County Maintenance Area. compliance with these statutes and § 9.1 OMB approvals under the Paperwork Reduction Act. Secondly, EPA is providing information Executive Orders for the underlying rule on the status of its transportation is discussed in the August 23, 2004, * * * * * conformity adequacy determination for Federal Register notice. the new MVEBs for the year 2015 that OMB Congressional Review Act 40 CFR citation Control No. are contained in the 10-year update to the 1-hour ozone maintenance plan for The Congressional Review Act, 5 the Edmonson County Area. In today’s U.S.C. 801 et seq., as added by the Small ***** action, EPA is only addressing the Business Regulatory Enforcement portion of the SIP revision for Fairness Act of 1996, generally provides Concentrated Aquatic Animal Production Point Source Category Edmonson County. EPA will take that before a rule may take effect, the 451.3 ...... 2040–0258 separate action to address the other agency promulgating the rule must portions of the SIP revision. submit a rule report, which includes a 451.11(d) ...... 2040–0258 copy of the rule, to each House of the 451.21(g) ...... 2040–0258 DATES: This direct final rule is effective Congress and to the Comptroller General February 15, 2005, without further of the United States. Section 808 allows ***** notice, unless EPA receives adverse the issuing agency to make a good cause comment by January 18, 2005. If adverse [FR Doc. 04–27663 Filed 12–16–04; 8:45 am] finding that notice and public procedure comment is received, EPA will publish is impracticable, unnecessary or BILLING CODE 6560–50–P a timely withdrawal of the direct final contrary to the public interest. This rule in the Federal Register and inform determination must be supported by a the public that the rule will not take brief statement. 5 U.S.C. 808(2). As effect. stated previously, EPA has made such a ADDRESSES: Submit your comments, good cause finding, including the identified by Regional Material in reasons therefor, and established an EDocket (RME) ID No. R04–OAR–2004–
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KY–0001, by one of the following name and other contact information in VI. Final Action methods: the body of your comment and with any VII. Statutory and Executive Order Reviews 1. Federal eRulemaking Portal: disk or CD–ROM you submit. If EPA I. General Information http://www.regulations.gov. Follow the cannot read your comment due to on-line instructions for submitting technical difficulties and cannot contact A. How Can I Get Copies Of This comments. you for clarification, EPA may not be Document and Other Related 2. Agency Web site: http:// able to consider your comment. Information? docket.epa.gov/rmepub/ RME, EPA’s Electronic files should avoid the use of In addition to the publicly available electronic public docket and comment special characters, any form of docket materials available for inspection system, is EPA’s preferred method for encryption, and be free of any defects or electronically in Regional Material in receiving comments. Once in the viruses. EDocket, and the hard copy available at system, select ‘‘quick search,’’ then key Docket: All documents in the the Regional Office, which are identified in the appropriate RME Docket electronic docket are listed in the RME in the ADDRESSES section above, copies identification number. Follow the on- index at http://docket.epa.gov/rmepub/. of the State submittal and EPA’s line instructions for submitting Although listed in the index, some technical support document are also comments. information is not publicly available, available for public inspection during 3. E-mail: [email protected]. i.e., CBI or other information whose normal business hours, by appointment 4. Fax: 404–562–9019. disclosure is restricted by statute. at the State Air Agency, Commonwealth 5. Mail: ‘‘R04–OAR–2004–KY–0001,’’ Certain other material, such as of Kentucky, Division of Air Quality, Regulatory Development Section, Air copyrighted material, is not placed on 803 Schenkel Lane, Frankfort, Kentucky Planning Branch, Air, Pesticides and the Internet and will be publicly 40601–1403. Toxics Management Division, U.S. available only in hard copy form. Environmental Protection Agency, Publicly available docket materials are II. What Is the Background for This Region 4, 61 Forsyth Street, SW., available either electronically in RME or Action? Atlanta, Georgia 30303–8960. in hard copy at the Regulatory The air quality maintenance plan is a 6. Hand Delivery or Courier: Deliver Development Section, Air Planning requirement of the 1990 CAA for your comments to: Rosymar De La Torre Branch, Air, Pesticides and Toxics nonattainment areas that come into ´ Colon, Regulatory Development Section, Management Division, U.S. compliance with the national ambient Air Planning Branch, Air, Pesticides and Environmental Protection Agency, air quality standard (NAAQS) to assure Toxics Management Division 12th floor, Region 4, 61 Forsyth Street, SW., their continued maintenance of that U.S. Environmental Protection Agency, Atlanta, Georgia 30303–8960. EPA standard. Eight years after redesignation Region 4, 61 Forsyth Street, SW., requests that if at all possible, you to attainment, section 175A(b) of the Atlanta, Georgia 30303–8960. Such contact the contact listed in the FOR CAA requires the state to submit a deliveries are only accepted during the FURTHER INFORMATION CONTACT section to revised maintenance plan which Regional Office’s normal hours of schedule your inspection. The Regional demonstrates that attainment will operation. The Regional Office’s official Office’s official hours of business are continue to be maintained for the ten hours of business are Monday through Monday through Friday, 8:30 to 4:30, years following the initial ten-year Friday, 8:30 to 4:30, excluding Federal excluding Federal holidays. period (this is known as the second 10- holidays. FOR FURTHER INFORMATION CONTACT: year plan). This second 10-year plan Instructions: Direct your comments to updates the original 10-year 1-hour RME ID No. R04–OAR–2004–KY–0001. Rosymar De La Torre Colo´n, Regulatory Development Section, Air Planning ozone maintenance plan for the next 10- EPA’s policy is that all comments year period. received will be included in the public Branch, Air, Pesticides and Toxics Management Division, U.S. EPA designated Edmonson County, docket without change and may be Kentucky as marginal nonattainment for made available online at http:// Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., the 1-hour ozone NAAQS on November docket.epa.gov/rmepub/, including any 6, 1991 (56 FR 56694), effective on personal information provided, unless Atlanta, Georgia 30303–8960, (404) 562– 8965, [email protected], or January 6, 1992. EPA approved the the comment includes information redesignation of Edmonson County to claimed to be Confidential Business Lynorae Benjamin, Air Quality Modeling and Transportation Section, attainment for the 1-hour ozone Information (CBI) or other information standard, on November 3, 1994 (60 FR Air Planning Branch, Air, Pesticides and whose disclosure is restricted by statute. 47092), effective on January 3, 1995. In Toxics Management Division, U.S. Do not submit information that you this same rulemaking, EPA also Environmental Protection Agency, consider to be CBI or otherwise approved the Edmonson County’s plan Region 4, 61 Forsyth Street, SW., protected through RME, regulations.gov, for maintaining the 1-hour ozone Atlanta, Georgia 30303–8960, (404) 562 or e-mail. The EPA RME Web site and NAAQS for the time period 1994 9040, [email protected]. the Federal regulations.gov Web site are through 2004. ‘‘anonymous access’’ systems, which SUPPLEMENTARY INFORMATION: On February 19, 2004, Kentucky means EPA will not know your identity Table of Contents submitted to EPA a draft SIP revision for or contact information unless you I. General Information parallel processing to provide for the 10- provide it in the body of your comment. II. What is the Background for This Action? year update to the original maintenance If you send an e-mail comment directly III. What is EPA’s Analysis of the Edmonson plans for five 1-hour ozone maintenance to EPA without going through RME or County Maintenance Area’s Second 10- areas as required by section 175A(b) of regulations.gov, your e-mail address Year Plan? the CAA. Specific to the Edmonson will be automatically captured and IV. What are the MVEBs for the Edmonson County Maintenance Area, the draft included as part of the comment that is County Maintenance Area? revision provided an update to the V. What is an Adequacy Determination and placed in the public docket and made What is the Status of EPA’s Adequacy Edmonson County 1-Hour Ozone available on the Internet. If you submit Determination for the Edmonson Maintenance plan for the next 10 years, an electronic comment, EPA Maintenance Area’s New MVEB for the i.e., 2005 through 2015. This draft 10- recommends that you include your Year 2015? year update for the Edmonson County
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Maintenance Area included updated second 10-year maintenance plan for the that these emission inventories also MVEBs for the year 2004 and Edmonson County Maintenance Area, indicate attainment for the area, and can established new MVEBs for the year and indicates continued maintenance of be used for comparison purposes for 2015. While EPA did not have the the 1-hour ozone standard through demonstrating continued maintenance opportunity to parallel process this draft 2015. In this submittal, Kentucky opted in the projected years of 2004, 2005, submittal, EPA did begin the Adequacy to use 1990 as the comparison year to 2009, 2012, and 2015. The level of the Process for the newly-established 2015 demonstrate continued maintenance. projected emissions for all projected MVEBs. The Adequacy comment period While use of the 1990 emission years for both the NOX and VOC for the 2015 MVEBs began on February inventory appears to demonstrate precursors is below the level of 24, 2004, with EPA’s posting of the continued maintenance for the 1-hour emissions for these precursors in 2000. availability of this submittal on EPA’s ozone standard with regard to the Therefore, EPA believes that this is a Adequacy Web site (at http:// volatile organic compound (VOC) sufficient demonstration of continued www.epa.gov/otaq/transp/conform/ precursor inventory, the use of the 1990 maintenance for the 1-hour ozone adequacy.htm). The Adequacy comment emission inventory does not appear to standard for the Edmonson County area. period for these MVEBs ended March demonstrate continued maintenance for 25, 2004. No requests for this submittal Furthermore, this area is currently in the 1-hour ozone standard with regard attainment for the more stringent 8-hour or adverse comments on this submittal to the nitrogen oxide (NOX) precursor were received during the Adequacy ozone standard. This rationale is inventory because the total NOX consistent with the September 4, 1992, comment period. Please see the emissions levels in 2000 is higher than EPA Guidance memorandum entitled Adequacy Section of this rulemaking for those in 1990. However, the revision ‘‘Procedures for Processing Requests to further explanation on this process. includes new ozone precursor emission Redesignate Areas to Attainment.’’ While EPA can initiate the Adequacy inventory for 2000 for Edmonson process with a draft submittal, EPA County which reflect updated emission EPA is processing the Edmonson cannot conclude this process until a controls applicable for the area, and County portion of Kentucky’s SIP final submittal is received. On August projected emissions for 2004, 2005, revision and is approving the Edmonson 24, 2004, Kentucky submitted to EPA a 2009, 2012, and 2015. County 10-year update for its 1-hour final SIP revision for the 10-year update ozone maintenance plan, including to the original maintenance plans for In the September 4, 1992, EPA guidance document, entitled, approval of the updated 2004 MVEBs three 1-hour ozone maintenance areas as and the newly-established 2015 MVEBs, required by section 175A(b) of the CAA. ‘‘Procedures for Processing Requests to because EPA has determined that the This final submittal includes the Redesignate Areas to Attainment,’’ EPA Plan complies with the requirements of updated MVEBs for the year 2004 and encourages the use of updated emission establishes new MVEBs for the year inventories to verify continued Section 175A of the CAA. The following 2015. attainment. As the Commonwealth two tables provide emissions data and mentions in its submittal, the 2000 projections calculated, using III. What Is EPA’s Analysis of the emission inventories are updated, and MOBILE6.2, for the ozone precursors, Edmonson County Maintenance Area’s are being provided as a part of the VOC and NOX. Italicized figures in Second 10-Year Plan? August 24, 2004, final SIP revision. This Tables 1 and 2 highlight data The Commonwealth’s August 24, area was attainment for the 1-hour comprising the 2004 and 2015 MVEBs, 2004, final SIP revision includes a ozone standard in 2000, so EPA believes also presented in Table 3.
TABLE 1.—EDMONSON COUNTY 1-HOUR OZONE MAINTENANCE AREA VOC EMISSIONS (TONS PER DAY) [Year 1990, 2000 emission inventory and projected VOC emissions (2004–2015)]
County 1990 2000 2004 2005 2009 2012 2015
Point ...... 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Area ...... 0.74 0.89 0.93 0.94 0.98 1.02 1.05 Highway ...... 1.57 0.73 0.60 0.55 0.45 0.38 0.33 Non-Hwy ...... 0.45 0.27 0.26 0.25 0.23 0.23 0.23 Edmonson ...... 2.76 1.89 1.79 1.74 1.66 1.63 1.61 Safety Margin ...... N/A N/A 0.10 0.15 0.23 0.26 0.28
TABLE 2.—EDMONSON COUNTY 1-HOUR OZONE MAINTENANCE AREA NOX EMISSIONS (TONS PER DAY)
[Year 1990, 2000 emission inventory and projected NOX emissions (2004–2015)]
County 1990 2000 2004 2005 2009 2012 2015
Point ...... 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Area ...... 0.04 0.06 0.06 0.06 0.06 0.07 0.07 Highway ...... 1.08 1.09 0.95 0.91 0.72 0.56 0.43 Non-Hwy ...... 0.37 0.52 0.48 0.48 0.43 0.40 0.38 Edmonson ...... 1.49 1.67 1.49 1.45 1.21 1.03 0.88 Safety Margin ...... N/A N/A 0.18 0.22 0.46 0.64 0.79
Under 40 CFR 93.101, the term safety the projected level of emissions (from level of emissions during one of the margin is the difference between the all sources) in the maintenance plan. years in which the area met the air attainment level (from all sources) and The attainment level of emissions is the quality health standard.
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The emissions from point, area, plan does not ‘‘conform,’’ most projects containing those MVEBs has not yet nonroad, and mobile sources in 2000 that would expand the capacity of been finalized. EPA’s substantive equal 1.89 tons per day (tpd) of VOC for roadways cannot go forward. criteria for determining ‘‘adequacy’’ of Edmonson County. Projected VOC Regulations at 40 CFR part 93 set forth MVEBs in submitted SIPs are set out in emissions out to the year 2015 equal EPA policy, criteria, and procedures for 40 CFR 93.118(e)(4). 1.61 tpd of VOC. The available safety demonstrating and assuring conformity EPA’s process for determining margin for VOC is calculated to be the of such transportation activities to a SIP. ‘‘adequacy’’ of MVEBs in submitted SIPs difference between these amounts or, in In this revision, Kentucky used consists of three basic steps: public this case, 0.28 tpd of VOC for 2015. By MOBILE6.2 to update the Edmonson comment period, and EPA’s adequacy this same method, 0.79 tpd (i.e., 1.67 County MVEBs for 2004, in addition to finding. This process for determining tpd less 0.88 tpd) is the safety margin establishing MVEBs for VOC and NOX the adequacy of submitted SIP MVEBs for NOX for 2015. The emissions are for the year 2015. The MVEBs have been is set out in EPA’s May 1999 guidance, projected to maintain the area’s air defined for 2004 and 2015 in the ‘‘Conformity Guidance on quality consistent with the NAAQS. The Commonwealth’s submittal, and are Implementation of March 2, 1999, safety margin credit, or a portion presented in Table 3 below. Conformity Court Decision.’’ This thereof, can be allocated to the guidance is incorporated into EPA’s transportation sector. The total emission TABLE 3 June 30, 2003, proposed rulemaking level must stay below the attainment entitled ‘‘Transportation Conformity level to be acceptable. The safety margin NOX VOC Rule Amendments: Response to Court is the extra emissions that can be Decision and Additional Rule Changes’’ allocated as long as the total attainment 2004 ...... 0.95 0.60 (68 FR 38974). Additionally, this level of emissions is maintained. 2015 ...... 0.43 0.33 guidance was finalized in the As mentioned previously, the Transportation Conformity Rule Commonwealth’s August 24, 2004, final For the 2004 and 2015 MVEBs, the Amendments for the ‘‘New 8-Hour SIP revision also updates the MVEBs for values for a given year are equal to the Ozone and PM2.5 National Ambient Air the Edmonson County Maintenance on-road mobile source projected level of Quality Standards and Miscellaneous Area for 2004, and establishes new emissions for that year (i.e., none of the Revisions for Existing Areas; MVEBs for 2015. Because EPA did not available safety margins for VOC and Transportation Conformity Rule provide a separate notice regarding the NOX were allocated to the MVEBs). The Amendments—Response to Court adequacy of the 2015 MVEBs, EPA is MVEBs are constrained in each of the Decision and Additional Rule Change’’ taking the opportunity through this budget years to assure that the total on July 1, 2004 (69 FR 40004). EPA rulemaking to announce that it has emissions (i.e., all source categories) do follows this guidance and rulemaking in determined that the 2015 MVEBs are not exceed the 2000 base year making its adequacy determinations. adequate for use to determine emissions. In no case are the projected The Edmonson County Maintenance transportation conformity. See section V total emissions from mobile sources for Area’s draft second 10-year maintenance of this rulemaking for more information any year greater than the base year plan submissions contained new on EPA’s Adequacy Process and emissions totals for either VOC or NOX. proposed VOC and NOX MVEBs for the determination for this area. As part of this final approval, EPA is year 2015. The availability of the draft approving both the revisions to the 2004 SIP submission with these 2015 MVEBs IV. What Are the MVEBs for the MVEBs and the newly-established 2015 was announced for public comment on Edmonson County Maintenance Area? MVEBs for the Edmonson County EPA’s adequacy Web page on February Maintenance plans and other control Maintenance Area. Upon EPA approval 24, 2004, at: http://www.epa.gov/otaq/ strategy SIPs create MVEBs for criteria of the revised 2004 and new 2015 transp/conform/currsips.htm. The EPA pollutants and/or their precursors to MVEBs in this final rulemaking, the public comment period on adequacy of address pollution from cars and trucks. Edmonson maintenance area must use the 2015 MVEBs for the Edmonson The MVEB is the portion of the total the revised and new MVEBs for future County Maintenance Area closed on allowable emissions that is allocated to transportation conformity March 25, 2004. EPA did not receive highway and transit vehicle use and determinations, effective on the any adverse comments, and in this emissions. The MVEB serves as a ceiling effective date of this direct final rulemaking, is making a determination on emissions from an area’s planned rulemaking. that the adequacy criteria for the 2015 transportation system. The MVEB V. What Is an Adequacy Determination MVEB have been met. Additionally, concept is further explained in the and What Is the Status of EPA’s EPA through this rulemaking is preamble to the November 24, 1993, Adequacy Determination for the approving those MVEBs for use to Transportation Conformity Rule (58 FR Edmonson Maintenance Area’s New determine transportation conformity. 62188). The preamble also describes MVEB for the Year 2015? how to establish the MVEBs in the SIP VI. Final Action and how to revise the MVEBs. Until a MVEB in a SIP submittal is EPA is approving Kentucky’s August Under section 176(c) of the CAA, new approved by EPA, it cannot be used for 24, 2004, SIP revision pertaining to the transportation projects, such as the transportation conformity purposes Edmonson County Maintenance Area’s construction of new highways, must unless EPA makes an affirmative finding 10-year update for its 1-hour ozone ‘‘conform’’ to (e.g., be consistent with) that the MVEBs contained therein are maintenance plan, and is providing the part of the State’s air quality plan ‘‘adequate.’’ Once EPA affirmatively notice that it has determined the 2015 that addresses pollution from cars and finds the submitted MVEBs adequate for VOC and NOX MVEBs to be adequate trucks. ‘‘Conformity’’ to the SIP means transportation conformity purposes, under the requirements of 40 CFR that transportation activities will not those MVEBs can be used by State and 93.118(e)(4). Additionally, through this cause new air quality violations, worsen Federal agencies in determining action, EPA is approving the revised existing violations, or delay timely whether proposed transportation 2004 MVEBs and the newly-established attainment of the national ambient air projects ‘‘conform’’ to the SIP even 2015 MVEBs for the Edmonson County quality standards. If a transportation though EPA approval of the SIP revision area. The revised 2004 MVEBs are 0.60
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tpd for VOC and 0.95 tpd for NOX; the Significantly Affect Energy Supply, 272 note) do not apply. This rule does 2015 MVEBs are 0.33 tpd for VOC and Distribution, or Use’’ (66 FR 28355, May not impose an information collection 0.43 tpd for NOX. EPA is approving the 22, 2001). This action merely approves burden under the provisions of the aformentioned changes to Kentucky’s state law as meeting Federal Paperwork Reduction Act of 1995 (44 SIP because they are consistent with requirements and imposes no additional U.S.C. 3501 et seq.). Agency policy and guidance and meet requirements beyond those imposed by The Congressional Review Act, 5 all the requirements of section 110 and state law. Accordingly, the U.S.C. 801 et seq., as added by the Small section 175A of the Clean Air Act. As Administrator certifies that this rule Business Regulatory Enforcement a result of today’s SIP revision approval, will not have a significant economic Fairness Act of 1996, generally provides the revised 2004 MVEBs and the newly impact on a substantial number of small that before a rule may take effect, the established MVEB for 2015 must be entities under the Regulatory Flexibility agency promulgating the rule must used for future transportation Act (5 U.S.C. 601 et seq.). Because this submit a rule report, which includes a conformity determinations effective on rule approves pre-existing requirements copy of the rule, to each House of the February 15, 2005. The MVEBs, based under state law and does not impose Congress and to the Comptroller General on the on-road mobile sources, are to be any additional enforceable duty beyond of the United States. EPA will submit a used by the local metropolitan planning that required by state law, it does not report containing this rule and other organizations and transportation contain any unfunded mandate or required information to the U.S. Senate, authorities to assure that transportation significantly or uniquely affect small the U.S. House of Representatives, and plans, programs, and projects are governments, as described in the the Comptroller General of the United consistent with, and conform to, the Unfunded Mandates Reform Act of 1995 States prior to publication of the rule in long term maintenance of acceptable air (Pub. L. 104–4). the Federal Register. A major rule quality in the Edmonson County area. This rule also does not have tribal cannot take effect until 60 days after it The EPA is publishing this rule implications because it will not have a is published in the Federal Register. without prior proposal because the substantial direct effect on one or more This action is not a ‘‘major rule’’ as Agency views this as a noncontroversial Indian tribes, on the relationship defined by 5 U.S.C. 804(2). submittal and anticipates no adverse between the Federal Government and Under section 307(b)(1) of the Clean comments. However, in the proposed Indian tribes, or on the distribution of Air Act, petitions for judicial review of rules section of this Federal Register power and responsibilities between the this action must be filed in the United publication, EPA is publishing a Federal Government and Indian tribes, States Court of Appeals for the separate document that will serve as the as specified by Executive Order 13175 appropriate circuit by February 15, proposal to approve the SIP revision (65 FR 67249, November 9, 2000). This 2005. Filing a petition for should adverse comments be filed. This action also does not have federalism reconsideration by the Administrator of rule will be effective February 15, 2005, implications because it does not have this final rule does not affect the finality without further notice unless the substantial direct effects on the States, of this rule for the purposes of judicial Agency receives adverse comments by on the relationship between the national review nor does it extend the time January 18, 2005. government and the States, or on the within which a petition for judicial If the EPA receives such comments, distribution of power and review may be filed, and shall not then EPA will publish a document responsibilities among the various postpone the effectiveness of such rule withdrawing the final rule and levels of government, as specified in or action. This action may not be informing the public that the rule will Executive Order 13132 (64 FR 43255, challenged later in proceedings to not take effect. All public comments August 10, 1999). This action merely received will then be addressed in a approves a state rule implementing a enforce its requirements. (See section subsequent final rule based on the Federal standard, and does not alter the 307(b)(2).) proposed rule. The EPA will not relationship or the distribution of power List of Subjects in 40 CFR Part 52 institute a second comment period. and responsibilities established in the Environmental protection, Air Parties interested in commenting should Clean Air Act. This rule also is not pollution control, Intergovernmental do so at this time. If no such comments subject to Executive Order 13045 relations, Nitrogen dioxide, Ozone, are received, the public is advised that ‘‘Protection of Children from this rule will be effective on February Environmental Health Risks and Safety Reporting and recordkeeping 15, 2005, and no further action will be Risks’’ (62 FR 19885, April 23, 1997), requirements, Volatile organic taken on the proposed rule. Please note because it is not economically compounds. that if we receive adverse comment on significant. Dated: November 29, 2004. an amendment, paragraph, or section of In reviewing SIP submissions, EPA’s A. Stanley Meiburg, this rule and if that provision may be role is to approve state choices, Acting Regional Administrator, Region 4. provided that they meet the criteria of severed from the remainder of the rule, I Part 52 of chapter I, title 40, Code of the Clean Air Act. In this context, in the we may adopt as final those provisions Federal Regulations, is amended as absence of a prior existing requirement of the rule that are not the subject of an follows: adverse comment. for the State to use voluntary consensus standards (VCS), EPA has no authority PART 52—[AMENDED] VII. Statutory and Executive Order to disapprove a SIP submission for Reviews failure to use VCS. It would thus be I 1. The authority citation for part 52 Under Executive Order 12866 (58 FR inconsistent with applicable law for continues to read as follows: 51735, October 4, 1993), this action is EPA, when it reviews a SIP submission, Authority: 42 U.S.C. 7401 et seq. not a ‘‘significant regulatory action’’ and to use VCS in place of a SIP submission therefore is not subject to review by the that otherwise satisfies the provisions of Subpart S—Kentucky Office of Management and Budget. For the Clean Air Act. Thus, the this reason, this action is also not requirements of section 12(d) of the I 2. Section 52.920(e), is amended by subject to Executive Order 13211, National Technology Transfer and adding a new entry at the end of the table ‘‘Actions Concerning Regulations That Advancement Act of 1995 (15 U.S.C. for ‘‘Edmonson Ozone 10 year
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Maintenance Plan Update’’ to read as § 52.920 Identification of plan. (e) * * * follows: * * * * *
EPA APPROVED KENTUCKY NON-REGULATORY PROVISIONS
Applicable geographic or State submittal date/ Name of non-regulatory SIP provision nonattainment area effective date EPA approval date Explanation
******* Edmonson Ozone 10 year Maintenance Plan Up- Edmonson County ...... August 24, 2003 ...... December 17, 2004 date. [Insert Federal Reg- ister citation]
[FR Doc. 04–27656 Filed 12–16–04; 8:45 am] List of Subjects in 40 CFR Part 52 ADDRESSES: Submit your comments, BILLING CODE 6560–50–P Environmental protection, Air identified by Regional Material in pollution control, Intergovernmental EDocket (RME) ID Number R07–OAR– relations, Nitrogen oxides, Ozone, 2004–MO–0004, by one of the following ENVIRONMENTAL PROTECTION Reporting and recordkeeping methods: AGENCY requirements, Volatile organic 1. Federal eRulemaking Portal: http:/ compounds. /www.regulations.gov. Follow the on- 40 CFR Part 52 line instructions for submitting Dated: December 9, 2004. [R06–OAR–2004–TX–0002; FRL–7849–5] comments. Lawrence E. Starfield, 2. Agency Web site: http:// Approval and Promulgation of Acting Regional Administrator, Region 6. docket.epa.gov/rmepub/. RME, EPA’s Implementation Plans; Texas; I Accordingly, the revision to 40 CFR electronic public docket and comment Memorandum of Agreement Between 52.2270 published in the Federal system, is EPA’s preferred method for Texas Council on Environmental Register on October 29, 2004 (69 FR receiving comments. Once in the Quality and the North Central Texas 63066), which was to become effective system, select ‘‘quick search’’; then key Council of Governments Providing on December 28, 2004, is withdrawn. in the appropriate RME Docket Emissions Offsets to Dallas Fort Worth identification number. Follow the on- International Airport [FR Doc. 04–27655 Filed 12–16–04; 8:45 am] line instructions for submitting BILLING CODE 6560–50–M comments. AGENCY: Environmental Protection 3. E-mail: [email protected]. Agency (EPA). 4. Mail: Leland Daniels, ENVIRONMENTAL PROTECTION ACTION: Withdrawal of direct final rule. Environmental Protection Agency, Air AGENCY Planning and Development Branch, 901 SUMMARY: On October 29, 2004 (69 FR 40 CFR Parts 52 and 70 North 5th Street, Kansas City, Kansas 63066), EPA published a direct final 66101. rule approving incorporation of a [R07–OAR–2004–MO–0004; FRL–7850–3] 5. Hand Delivery or Courier: Deliver Memorandum of Agreement between your comments to Leland Daniels at the Approval and Promulgation of the Texas Commission on above-listed address. Implementation Plans and Operating Environmental Quality and the North Instructions: Direct your comments to Permits Program; State of Missouri Central Texas Council of Governments RME ID No. R07–OAR–2004–MO–0004. into the Texas SIP. The direct final AGENCY: Environmental Protection EPA’s policy is that all comments action was published without prior Agency (EPA). received will be included in the public proposal because EPA anticipated no ACTION: Direct final rule. docket without change and may be adverse comment. EPA stated in the made available online at http:// direct final rule that if EPA received SUMMARY: EPA is approving revisions to docket.epa.gov/rmepub/, including any adverse comment by November 29, the Missouri State Implementation Plan personal information provided, unless 2004, EPA would publish a timely (SIP) and Operating Permits Program. the comment includes information withdrawal in the Federal Register. EPA EPA is approving a revision to Missouri claimed to be Confidential Business subsequently received a timely adverse rule ‘‘Submission of Emission Data, Information (CBI) or other information comment on the direct final rule. Emission Fees, and Process whose disclosure is restricted by statute. Therefore, EPA is withdrawing the Information.’’ This revision will ensure Do not submit information that you direct final approval. EPA will address consistency between the state and the consider to be CBI or otherwise the comment in a subsequent final Federally-approved rules and ensure protected through RME, regulations.gov, action based on the parallel proposal Federal enforceability of the state’s air or e-mail. also published on October 29, 2004 (69 program rule revision. The EPA RME Web site and the FR 63112). As stated in the parallel DATES: This direct final rule will be Federal regulations.gov Web site are proposal, EPA will not institute a effective February 15, 2005, without ‘‘anonymous access’’ systems, which second comment period on this action. further notice, unless EPA receives means EPA will not know your identity DATES: The direct final rule published adverse comment by January 18, 2005. or contact information unless you on October 29, 2004 (69 FR 63066), is If adverse comment is received, EPA provide it in the body of your comment. withdrawn as of December 17, 2004. will publish a timely withdrawal of the If you send an e-mail comment directly FOR FURTHER INFORMATION CONTACT: direct final rule in the Federal Register to EPA without going through RME or Peggy Wade, telephone (214) 665–7247; informing the public that the rule will regulations.gov, your e-mail address e-mail address [email protected]. not take effect. will be automatically captured and
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included as part of the comment that is meets the national ambient air quality offered legal recourse to address placed in the public docket and made standards established by us. These violations as described in section 304 of available on the Internet. If you submit ambient standards are established under the CAA. an electronic comment, EPA section 109 of the CAA, and they What Is the Part 70 Operating Permits currently address six criteria pollutants. recommends that you include your Program? name and other contact information in These pollutants are: Carbon monoxide, the body of your comment and with any nitrogen dioxide, ozone, lead, The CAA Amendments of 1990 disk or CD–ROM you submit. If EPA particulate matter, and sulfur dioxide. require all states to develop operating cannot read your comment due to Each state must submit these permits programs that meet certain technical difficulties and cannot contact regulations and control strategies to us Federal criteria. In implementing this you for clarification, EPA may not be for approval and incorporation into the program, the states are to require certain able to consider your comment. Federally-enforceable SIP. sources of air pollution to obtain Electronic files should avoid the use of Each Federally-approved SIP protects permits that contain all applicable special characters, any form of air quality primarily by addressing air requirements under the CAA. One encryption, and be free of any defects or pollution at its point of origin. These purpose of the part 70 operating permits viruses. SIPs can be extensive, containing state program is to improve enforcement by Docket: All documents in the regulations or other enforceable issuing each source a single permit that electronic docket are listed in the RME documents and supporting information consolidates all of the applicable CAA index at http://docket.epa.gov/rmepub/. such as emission inventories, requirements into a Federally- Although listed in the index, some monitoring networks, and modeling enforceable document. By consolidating information is not publicly available, demonstrations. all of the applicable requirements for a i.e., CBI or other information whose facility into one document, the source, What Is the Federal Approval Process the public, and the permitting disclosure is restricted by statute. for a SIP? Certain other material, such as authorities can more easily determine copyrighted material, is not placed on In order for state regulations to be what CAA requirements apply and how the Internet and will be publicly incorporated into the Federally- compliance with those requirements is available only in hard copy form. enforceable SIP, states must formally determined. Publicly available docket materials are adopt the regulations and control Sources required to obtain an available either electronically in RME or strategies consistent with state and operating permit under this program in hard copy at the Environmental Federal requirements. This process include ‘‘major’’ sources of air pollution Protection Agency, Air Planning and generally includes a public notice, and certain other sources specified in Development Branch, 901 North 5th public hearing, public comment period, the CAA or in our implementing Street, Kansas City, Kansas 66101. The and a formal adoption by a state- regulations. For example, all sources Regional Office’s official hours of authorized rulemaking body. regulated under the acid rain program, Once a state rule, regulation, or business are Monday through Friday, 8 regardless of size, must obtain permits. control strategy is adopted, the state a.m. to 4:30 p.m., excluding Federal Examples of major sources include submits it to us for inclusion into the holidays. The interested persons those that emit 100 tons per year or SIP. We must provide public notice and wanting to examine these documents more of volatile organic compounds, seek additional public comment should make an appointment with the carbon monoxide, lead, sulfur dioxide, regarding the proposed Federal action office at least 24 hours in advance. nitrogen dioxide, or PM10; those that on the state submission. If adverse emit 10 tons per year of any single FOR FURTHER INFORMATION CONTACT: comments are received, they must be hazardous air pollutant (HAP) Leland Daniels at (913) 551–7651, or by addressed prior to any final Federal (specifically listed under the CAA); or e-mail at [email protected]. action by us. those that emit 25 tons per year or more SUPPLEMENTARY INFORMATION: All state regulations and supporting of a combination of HAPs. Throughout this document whenever information approved by EPA under Revision to the state and local ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean section 110 of the CAA are incorporated agencies operating permits program are EPA. This section provides additional into the Federally-approved SIP. also subject to public notice, comment, information by addressing the following Records of such SIP actions are and our approval. questions: maintained in the Code of Federal Regulations (CFR) at Title 40, part 52, What Is the Federal Approval Process What Is a SIP? for an Operating Permits Program? What Is the Federal Approval Process for entitled ‘‘Approval and Promulgation of a SIP? Implementation Plans.’’ The actual state In order for state regulations to be What Does Federal Approval of a State regulations which are approved are not incorporated into the Federally- Regulation Mean to Me? reproduced in their entirety in the CFR enforceable Title V operating permits What Is the Part 70 Operating Permits outright but are ‘‘incorporated by program, states must formally adopt Program? reference,’’ which means that we have regulations consistent with state and What Is the Federal Approval Process for approved a given state regulation with Federal requirements. This process an Operating Permits Program? generally includes a public notice, What Is Being Addressed in This a specific effective date. Document? public hearing, public comment period, What Does Federal Aproval of a State and a formal adoption by a state- Have the Requirements for Approval of a Regulation Mean to Me? SIP Revision and Part 70 Revision Been Met? authorized rulemaking body. What Action Is EPA Taking? Enforcement of the state regulation Once a state rule, regulation, or before and after it is incorporated into control strategy is adopted, the state What Is a SIP? the Federally-approved SIP is primarily submits it to us for inclusion into the Section 110 of the Clean Air Act (CAA a state responsibility. However, after the approved operating permits program. or Act) requires states to develop air regulation is Federally approved, we are We must provide public notice and seek pollution regulations and control authorized to take enforcement action additional public comment regarding strategies to ensure that state air quality against violators. Citizens are also the proposed Federal action on the state
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submission. If adverse comments are Permits Program financial situation. An Statutory and Executive Order Reviews received, they must be addressed prior emissions fee of $35.00 per ton of Under Executive Order 12866 (58 FR to any final Federal action by us. regulated air pollutant starting with 51735, October 4, 1993), this action is All state regulations and supporting calendar year 2003 was established. For not a ‘‘significant regulatory action’’ and information approved by EPA under calendar year 2003, the fee is reduced therefore is not subject to review by the section 502 of the CAA are incorporated by one dollar per ton of regulated air Office of Management and Budget. For into the Federally-approved operating pollutant to reflect credit for fees this reason, this action is also not permits program. Records of such collected for 2002 calendar year subject to Executive Order 13211, actions are maintained in the CFR at emissions for the Missouri Emission ‘‘Actions Concerning Regulations That Title 40, part 70, appendix A, entitled Inventory System project. The resulting Significantly Affect Energy Supply, ‘‘Approval Status of State and Local fee of $34.00 is an increase over the Distribution, or Use’’ (66 FR 28355, May Operating Permits Programs.’’ $31.00 established in 2002 which was 22, 2001). This action merely approves What Is Being Addressed in This the first increase since the state began state law as meeting Federal Document? collecting fees in 1994. The fee is requirements and imposes no additional sufficient to fund the cost of Missouri, in its letter of December 5, requirements beyond those imposed by administering the Part 70 Operating state law. Accordingly, the 2003, requested that EPA approve a Permits Program. The emission fees are revision to the SIP and Operating Administrator certifies that this rule found in section (3)(D) of the amended will not have a significant economic Permits Program as revisions to rule 10 rule. CSR 10–6.110, ‘‘Submission of Emission impact on a substantial number of small Data, Emission Fees, and Process Have the Requirements for Approval of entities under the Regulatory Flexibility Information’’ had been made. This rule the SIP Revision and Part 70 Revision Act (5 U.S.C. 601 et seq.). Because this deals with submittal of emissions Been Met? rule approves pre-existing requirements information, emission fees, and public under state law and does not impose availability of emissions data. It The submittal satisfied the any additional enforceable duty beyond provides procedures for collection, completeness criteria of 40 CFR part 51, that required by state law, it does not recording, and submittal of emissions appendix V. In addition, the state contain any unfunded mandate or data and process information on state- submittal has met the public notice significantly or uniquely affect small supplied Emission Inventory requirements for SIP submission in governments, as described in the Questionnaire and Emission Statement accordance with 40 CFR 51.102, and the Unfunded Mandates Reform Act of 1995 forms so that the state can calculate substantive SIP requirements of the (Pub. L. 104–4). emissions for the purpose of state air CAA including section 110 and 40 CFR This rule also does not have tribal resource planning. 51.211, relating to submission of implications because it will not have a Missouri updates this rule emissions data. substantial direct effect on one or more periodically. This action covers the Finally, the submittal met the Indian tribes, on the relationship amendments made in 2003 which substantive requirements of Title V of between the Federal Government and include the following. The applicability the 1990 CAA Amendments and 40 CFR Indian tribes, or on the distribution of of the rule was broadened to require part 70, including the requirement in 40 power and responsibilities between the permit fees from any installation that CFR 70.9 relating to emission fees. Federal Government and Indian tribes, notifies and accepts a permit-by-rule as specified by Executive Order 13175 What Action Is EPA Taking? under 10 CSR 10–6.062. Although the (65 FR 67249, November 9, 2000). This permit-by-rule provision is referenced We are approving a revision to the action also does not have Federalism in 10–6.110, EPA is not acting on 10– Missouri SIP and incorporating the implications because it does not have 6.062 in this action. A new section revised rule 10 CSR 10–6.110, substantial direct effects on the States, references definitions in 10 CSR 10– ‘‘Submission of Emissions Data, on the relationship between the national 6.020. The definitions in that section Emission Fees, and Process government and the States, or on the previously approved by EPA are Information.’’ distribution of power and responsibilities among the various contained in the current SIP. Original We are also approving section (3)(D) levels of government, as specified in sections were renumbered. The of this rule (formerly identified as Executive Order 13132 (64 FR 43255, emissions fee for calendar year 2003 section (5)) as a program revision to the August 10, 1999). This action merely was increased to $35.00 per ton of state’s Part 70 Operating Permits approves a state rule implementing a regulated air pollutant. A new section Program. for record and record keeping Federal standard, and does not alter the requirements was added. A new section Although the permit-by-rule provision relationship or the distribution of power (5) was added as a placeholder for any is referenced in 10–6.110, EPA is not and responsibilities established in the test methods which might be acting on 10–6.062 in this action. CAA. This rule also is not subject to promulgated in the future. We are processing this action as a Executive Order 13045, ‘‘Protection of The use of a standard format for this direct final action because the revisions Children from Environmental Health rule resulted in the renumbering of the make routine changes to the existing Risks and Safety Risks’’ (62 FR 19885, sections. The addition of a new section rules which are noncontroversial, and April 23, 1997), because it is not (2) for definitions required the make regulatory revisions required by economically significant. renumbering of original section (2) to state statute. Therefore, we do not In reviewing SIP and Title V permit new section (3) for general provisions anticipate any adverse comments. submissions, EPA’s role is to approve and transferred original sections (2) Please note that if EPA receives adverse state choices, provided that they meet through (8) to section (3). comment on part of this rule and if that the criteria of the CAA. In this context, By State statute, the emission fees are part can be severed from the remainder in the absence of a prior existing set annually to fund the reasonable cost of the rule, EPA may adopt as final requirement for the State to use of administering the program. Missouri those parts of the rule that are not the voluntary consensus standards (VCS), continually evaluates the Operating subject of an adverse comment. EPA has no authority to disapprove a
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SIP submission for failure to use VCS. is published in the Federal Register. 40 CFR Part 70 It would thus be inconsistent with This action is not a ‘‘major rule’’ as applicable law for EPA, when it reviews defined by 5 U.S.C. 804(2). Administrative practice and a state submission, to use VCS in place Under section 307(b)(1) of the Clean procedure, Air pollution control, of a submission that otherwise satisfies Air Act, petitions for judicial review of Intergovernmental relations, Operating the provisions of the CAA. Thus, the this action must be filed in the United permits, Reporting and recordkeeping requirements of section 12(d) of the States Court of Appeals for the requirements. National Technology Transfer and appropriate circuit by February 15, Dated: December 6, 2004. 2005. Filing a petition for Advancement Act of 1995 (15 U.S.C. William W. Rice, 272 note) do not apply. This rule does reconsideration by the Administrator of not impose an information collection this final rule does not affect the finality Acting Regional Administrator, Region 7. of this rule for the purposes of judicial burden under the provisions of the I review nor does it extend the time Chapter I, title 40 of the Code of Paperwork Reduction Act of 1995 (44 Federal Regulations is amended as U.S.C. 3501 et seq.). within which a petition for judicial follows: The Congressional Review Act, 5 review may be filed, and shall not postpone the effectiveness of such rule U.S.C. 801 et seq., as added by the Small PART 52—[AMENDED] Business Regulatory Enforcement or action. This action may not be challenged later in proceedings to Fairness Act of 1996, generally provides I 1. The authority citation for part 52 enforce its requirements. (See section that before a rule may take effect, the continues to read as follows: agency promulgating the rule must 307(b)(2).) Authority: 42 U.S.C. 7401 et seq. submit a rule report, which includes a List of Subjects copy of the rule, to each House of the Subpart AA—Missouri Congress and to the Comptroller General 40 CFR Part 52 of the United States. EPA will submit a Environmental protection, Air I report containing this rule and other pollution control, Carbon monoxide, 2. In § 52.1320(c) the table is amended required information to the U.S. Senate, Incorporation by reference, under chapter 6 by revising the entry for the U.S. House of Representatives, and Intergovernmental relations, Lead, ‘‘10–6.110’’ to read as follows: the Comptroller General of the United Nitrogen dioxide, Ozone, Particulate § 52.1320 Identification of plan. States prior to publication of the rule in matter, Reporting and recordkeeping the Federal Register. A major rule requirements, Sulfur oxides, Volatile * * * * * cannot take effect until 60 days after it organic compounds. (c) * * *
EPA-APPROVED MISSOURI REGULATIONS
State effec- Missouri citation Title tive date EPA approval date Explanation
Missouri Department of Natural Resources
*******
Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri
******* 10–6.110 ...... Submission of Emission Data, 12/30/03 12/17/04 [Insert FR page Section (3)(D), Emissions Emission Fees, and Proc- number where the docu- Fees, has not been ap- ess Information. ment begins]. proved as part of the SIP.
*******
PART 70—[AMENDED] Missouri DEPARTMENT OF HOMELAND * * * * * SECURITY I 1. The authority citation for part 70 (o) The Missouri Department of Natural continues to read as follows: Resources submitted revisions to Missouri Federal Emergency Management rule 10 CSR 10–6.110, ‘‘Submission of Agency Authority: 42 U.S.C. 7401, et seq. Emission Data, Emission Fees, and Process A—[Amended] Information’’ on December 16, 2003, 44 CFR Part 64 approval of section (3)(D) effective February I 2. Appendix A to part 70 is amended [Docket No. FEMA–7859] 15, 2005. by adding paragraph (o) under Missouri Suspension of Community Eligibility to read as follows: * * * * * [FR Doc. 04–27661 Filed 12–16–04; 8:45 am] AGENCY: Federal Emergency Appendix A to Part 70—Approval BILLING CODE 6560–50–P Management Agency, Emergency Status of State and Local Operating Preparedness and Response Directorate, Permits Programs Department of Homeland Security. * * * * * ACTION: Final rule.
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SUMMARY: This rule identifies of legally enforceable floodplain Regulatory Flexibility Act. The communities, where the sale of flood management measures after this rule is Administrator has determined that this insurance has been authorized under published but prior to the actual rule is exempt from the requirements of the National Flood Insurance Program suspension date. These communities the Regulatory Flexibility Act because (NFIP), that are suspended on the will not be suspended and will continue the National Flood Insurance Act of effective dates listed within this rule their eligibility for the sale of insurance. 1968, as amended, 42 U.S.C. 4022, because of noncompliance with the A notice withdrawing the suspension of prohibits flood insurance coverage floodplain management requirements of the communities will be published in unless an appropriate public body the program. If the Federal Emergency the Federal Register. adopts adequate floodplain management Management Agency (FEMA) receives In addition, the Federal Emergency measures with effective enforcement documentation that the community has Management Agency has identified the measures. The communities listed no adopted the required floodplain special flood hazard areas in these longer comply with the statutory management measures prior to the communities by publishing a Flood requirements, and after the effective effective suspension date given in this Insurance Rate Map (FIRM). The date of date, flood insurance will no longer be rule, the suspension will be withdrawn the FIRM if one has been published, is available in the communities unless by publication in the Federal Register. indicated in the fourth column of the they take remedial action. DATES: Effective Dates: The effective table. No direct Federal financial Regulatory Classification. This final date of each community’s suspension is assistance (except assistance pursuant to rule is not a significant regulatory action the third date (‘‘Susp.’’) listed in the the Robert T. Stafford Disaster Relief under the criteria of section 3(f) of third column of the following tables. and Emergency Assistance Act not in Executive Order 12866 of September 30, ADDRESSES: If you wish to determine connection with a flood) may legally be 1993, Regulatory Planning and Review, whether a particular community was provided for construction or acquisition 58 FR 51735. suspended on the suspension date, of buildings in the identified special Paperwork Reduction Act. This rule contact the appropriate FEMA Regional flood hazard area of communities not does not involve any collection of Office or the NFIP servicing contractor. participating in the NFIP and identified information for purposes of the FOR FURTHER INFORMATION CONTACT: for more than a year, on the Federal Paperwork Reduction Act, 44 U.S.C. Michael M. Grimm, Mitigation Division, Emergency Management Agency’s 3501 et seq. initial flood insurance map of the 500 C Street, SW.; Room 412, Executive Order 12612, Federalism. Washington, DC 20472, (202) 646–2878. community as having flood-prone areas (section 202(a) of the Flood Disaster This rule involves no policies that have SUPPLEMENTARY INFORMATION: The NFIP federalism implications under Executive enables property owners to purchase Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition Order 12612, Federalism, October 26, flood insurance which is generally not 1987, 3 CFR, 1987 Comp.; p. 252. otherwise available. In return, against certain types of Federal Executive Order 12778, Civil Justice communities agree to adopt and assistance becomes effective for the administer local floodplain management communities listed on the date shown Reform. This rule meets the applicable aimed at protecting lives and new in the last column. The Administrator standards of section 2(b)(2) of Executive construction from future flooding. finds that notice and public comment Order 12778, October 25, 1991, 56 FR Section 1315 of the National Flood under 5 U.S.C. 553(b) are impracticable 55195, 3 CFR, 1991 Comp.; p. 309. Insurance Act of 1968, as amended, 42 and unnecessary because communities List of Subjects in 44 CFR Part 64 U.S.C. 4022, prohibits flood insurance listed in this final rule have been coverage as authorized under the adequately notified. Flood insurance, Floodplains. National Flood Insurance Program, 42 Each community receives a 6-month, I Accordingly, 44 CFR part 64 is U.S.C. 4001 et seq.; unless an 90-day, and 30-day notification amended as follows: appropriate public body adopts addressed to the Chief Executive Officer adequate floodplain management that the community will be suspended PART 64—[AMENDED] measures with effective enforcement unless the required floodplain measures. The communities listed in management measures are met prior to I 1. The authority citation for part 64 this document no longer meet that the effective suspension date. Since continues to read as follows: statutory requirement for compliance these notifications have been made, this Authority: 42 U.S.C. 4001 et seq.; with program regulations, 44 CFR part final rule may take effect within less Reorganization Plan No. 3 of 1978, 3 CFR, 59 et seq. Accordingly, the communities than 30 days. 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, will be suspended on the effective date National Environmental Policy Act. 3 CFR, 1979 Comp.; p. 376. in the third column. As of that date, This rule is categorically excluded from § 64.6 [Amended] flood insurance will no longer be the requirements of 44 CFR Part 10, available in the community. However, Environmental Considerations. No I 2. The tables published under the some of these communities may adopt environmental impact assessment has authority of § 64.6 are amended as and submit the required documentation been prepared. follows:
Date certain Federal assist- Community Effective date authorization/cancellation of Current effective ance no longer State and location No. sale of flood insurance in community map date available in spe- cial flood hazard areas
Region V Ohio: Bentleyville, Village of, Cuyahoga 390682 March 24, 1976, Emerg; August 1, 1980, Dec. 16, 2004 ... Dec. 16, 2004. County. Reg; December 16, 2004, Susp.
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Date certain Federal assist- Community Effective date authorization/cancellation of Current effective ance no longer State and location No. sale of flood insurance in community map date available in spe- cial flood hazard areas
McConnelsville, Village of, Morgan 390422 August 1, 1975, Emerg; July 1, 1987, Reg; ...... do ...... Do. County. December 16, 2004, Susp. *-do- = Ditto. Code for reading third column: Emerg.-Emergency; Reg.-Regular; Susp.-Suspension.
David I. Maurstad, respective addresses are listed in the the requirements of 44 CFR part 10, Acting Mitigation Division Director, table below. Environmental Consideration. No Emergency Preparedness and Response FOR FURTHER INFORMATION CONTACT: environmental impact assessment has Directorate. Doug Bellomo, P.E., Hazard been prepared. [FR Doc. 04–27618 Filed 12–16–04; 8:45 am] Identification Section, Emergency Regulatory Flexibility Act. The BILLING CODE 9110–12–P Preparedness and Response Directorate, Mitigation Division Director of the FEMA, 500 C Street, SW., Washington, Emergency Preparedness and Response DC 20472, (202) 646–2903. Directorate certifies that this rule is DEPARTMENT OF HOMELAND SUPPLEMENTARY INFORMATION: The exempt from the requirements of the SECURITY modified BFEs are not listed for each Regulatory Flexibility Act because Federal Emergency Management community in this interim rule. modified BFEs are required by the Flood Agency However, the address of the Chief Disaster Protection Act of 1973, 42 Executive Officer of the community U.S.C. 4105, and are required to where the modified BFE determinations 44 CFR Part 65 maintain community eligibility in the are available for inspection is provided. NFIP. No regulatory flexibility analysis Any request for reconsideration must [Docket No. FEMA–D–7565] has been prepared. be based upon knowledge of changed Regulatory Classification. This Changes in Flood Elevation conditions, or upon new scientific or interim rule is not a significant Determinations technical data. regulatory action under the criteria of The modifications are made pursuant section 3(f) of Executive Order 12866 of AGENCY: Federal Emergency to section 201 of the Flood Disaster September 30, 1993, Regulatory Management Agency (FEMA), Protection Act of 1973, 42 U.S.C. 4105, Planning and Review, 58 FR 51735. Emergency Preparedness and Response and are in accordance with the National Directorate, Department of Homeland Flood Insurance Act of 1968, 42 U.S.C. Executive Order 12612, Federalism. Security. 4001 et seq., and with 44 CFR part 65. This rule involves no policies that have federalism implications under Executive ACTION: Interim rule. For rating purposes, the currently effective community number is shown Order 12612, Federalism, dated October SUMMARY: This interim rule lists and must be used for all new policies 26, 1987. communities where modification of the and renewals. Executive Order 12778, Civil Justice Base (1% annual chance) Flood The modified BFEs are the basis for Reform. This rule meets the applicable Elevations (BFEs) is appropriate because the floodplain management measures standards of section 2(b)(2) of Executive of new scientific or technical data. New that the community is required to either Order 12778. flood insurance premium rates will be adopt or to show evidence of being List of Subjects in 44 CFR Part 65 calculated from the modified BFEs for already in effect in order to qualify or new buildings and their contents. to remain qualified for participation in Flood insurance, Floodplains, the National Flood Insurance Program DATES: These modified BFEs are Reporting and recordkeeping currently in effect on the dates listed in (NFIP). requirements. These modified elevations, together the table and revise the Flood Insurance with the floodplain management criteria I Accordingly, 44 CFR part 65 is Rate Map(s) (FIRMs) in effect prior to required by 44 CFR 60.3, are the amended to read as follows: this determination for each listed minimum that are required. They community. should not be construed to mean that PART 65—[AMENDED] From the date of the second the community must change any I publication of these changes in a existing ordinances that are more 1. The authority citation for part 65 newspaper of local circulation, any stringent in their floodplain continues to read as follows: person has ninety (90) days in which to management requirements. The Authority: 42 U.S.C. 4001 et seq.; request through the community that the community may at any time enact Reorganization Plan No. 3 of 1978, 3 CFR, Director reconsider the changes. The stricter requirements of its own, or 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, modified elevations may be changed pursuant to policies established by other 3 CFR, 1979 Comp., p. 376. during the 90-day period. Federal, State or regional entities. § 65.4 [Amended] ADDRESSES: The modified BFEs for each The changes in BFEs are in community are available for inspection accordance with 44 CFR 65.4. I 2. The tables published under the at the office of the Chief Executive National Environmental Policy Act. authority of § 65.4 are amended as shown Officer of each community. The This rule is categorically excluded from below:
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Dates and name of news- State and county Location paper where notice was Chief executive officer of commu- Effective date of Community published nity modification No.
Georgia: Gwinnett Unincorporated Oct. 7, 2004, Oct. 14, Mr. F. Wayne Hill, Chairman of the Sept. 29, 2004 ...... 130322 C areas. 2004, Gwinnett Daily Gwinnett County Board of Com- Post. missioners, Justice and Adminis- tration Center, 75 Langley Drive, Lawrenceville, Georgia 30045.
(Catalog of Federal Domestic Assistance No. SUPPLEMENTARY INFORMATION: FEMA Executive Order 12778, Civil Justice 83.100, ‘‘Flood Insurance’’) makes the final determinations listed Reform. This rule meets the applicable David I. Maurstad, below for the modified BFEs for each standards of section 2(b)(2) of Executive Acting Director, Mitigation Division, community listed. These modified Order 12778. elevations have been published in Emergency Preparedness and Response List of Subjects in 44 CFR Part 67 Directorate. newspapers of local circulation and [FR Doc. 04–27620 Filed 12–16–04; 8:45 am] ninety (90) days have elapsed since that Administrative practice and BILLING CODE 9110–12–P publication. The Mitigation Division procedure, flood insurance, reporting Director of the Emergency Preparedness and recordkeeping requirements. and Response Directorate, has resolved I Accordingly, 44 CFR part 67 is DEPARTMENT OF HOMELAND any appeals resulting from this amended as follows: SECURITY notification. This final rule is issued in accordance PART 67—[AMENDED] Federal Emergency Management with section 110 of the Flood Disaster Agency Protection Act of 1973, 42 U.S.C. 4104, I 1. The authority citation for part 67 and 44 CFR part 67. continues to read as follows: 44 CFR Part 67 The Agency has developed criteria for Authority: 42 U.S.C. 4001 et seq.; floodplain management in floodprone Final Flood Elevation Determinations Reorganization Plan No. 3 of 1978, 3 CFR, areas in accordance with 44 CFR part 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, AGENCY: Federal Emergency 60. 3 CFR, 1979 Comp., p. 376. Management Agency (FEMA), Interested lessees and owners of real § 67.11 [Amended] Emergency Preparedness and Response property are encouraged to review the Directorate, Department of Homeland proof Flood Insurance Study and FIRM I 2. The tables published under the Security. available at the address cited below for authority of § 67.11 are amended as each community. ACTION: Final rule. follows: The BFEs and modified BFEs are SUMMARY: Base (1% annual chance) made final in the communities listed #Depth in below. Elevations at selected locations feet above Flood Elevations (BFEs) and modified ground. BFEs are made final for the in each community are shown. *Elevation communities listed below. The BFEs National Environmental Policy Act. Source of Flooding and Location in feet (NGVD) and modified BFEs are the basis for the This rule is categorically excluded from •Elevation floodplain management measures that the requirements of 44 CFR part 10, in feet each community is required either to Environmental Consideration. No (NAVD) adopt or to show evidence of being environmental impact assessment has PENNSYLVANIA already in effect in order to qualify or been prepared. remain qualified for participation in the Regulatory Flexibility Act. The Lancaster County (FEMA National Flood Insurance Program Mitigation Division Director of the Docket No. D–7594) (NFIP). Emergency Preparedness and Response Conoy Creek: Directorate certifies that this rule is Approximately 1,850 feet up- • DATES: The date of issuance of the Flood exempt from the requirements of the stream of State Route 241 398 Insurance Rate Map (FIRM) showing Approximately 4,350 feet up- Regulatory Flexibility Act because final stream of State Route 241 •406 BFEs and modified BFEs for each or modified BFEs are required by the community. This date may be obtained Township of West Donegal Flood Disaster Protection Act of 1973, Chiques Creek: by contacting the office where the maps 42 U.S.C. 4104, and are required to Approximately 1,350 feet up- • are available for inspection as indicated establish and maintain community stream of Kinderhook Road .. 295 on the table below. Approximately 600 feet eligibility in the NFIP. No regulatory downstream of State Route ADDRESSES: The final BFEs for each flexibility analysis has been prepared. 72 ...... •438 community are available for inspection Regulatory Classification. This final Townships of Rapho, East at the office of the Chief Executive rule is not a significant regulatory action Hempfield, West Hempfield, Officer of each community. The under the criteria of section 3(f) of Penn respective addresses are listed in the Cocalico Creek: Executive Order 12866 of September 30, Approximately 400 feet table below. 1993, Regulatory Planning and Review, downstream of Disston FOR FURTHER INFORMATION CONTACT: 58 FR 51735. View Road ...... •300 Doug Bellomo, P.E., Hazard Executive Order 12612, Federalism. Approximately 150 feet downstream of Pennsyl- Identification Section, Emergency This rule involves no policies that have vania Turnpike ...... •394 Preparedness and Response Directorate, federalism implications under Executive Townships of Warwick, East FEMA, 500 C Street, SW., Washington, Order 12612, Federalism, dated October Cocalico, West Cocalico DC 20472, (202) 646–2903. 26, 1987. Little Cocalico Creek:
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#Depth in #Depth in #Depth in feet above feet above feet above ground. ground. ground. *Elevation *Elevation *Elevation Source of Flooding and Location in feet Source of Flooding and Location in feet Source of Flooding and Location in feet (NGVD) (NGVD) (NGVD) •Elevation •Elevation •Elevation in feet in feet in feet (NAVD) (NAVD) (NAVD) Approximately 800 feet Approximately 3,050 feet up- Maps available for inspection downstream of Pennsyl- stream of Millersville Road •278 at the Penn Township Office, vania Turnpike ...... •390 Approximately 3,350 feet up- 97 North Penryn Road, Approximately 200 feet stream of Millersville Road •278 Manheim, Pennsylvania. downstream of Pennsyl- Township of Brecknock • Township of Pequea vania Turnpike ...... 390 Maps available for inspection Maps available for inspection Township of East Cocalico at the Brecknock Township at the Pequea Township Of- Little Chiques Creek: Office, 1026 Dry Tavern fice, 1028 Millwood Road, Approximately 300 feet Road, Denver, Pennsylvania. Willow Street, Pennsylvania. downstream of Mount Joy Township of Colerain • Township of Providence Road ...... 326 Maps available for inspection Maps available for inspection Just downstream of Milton at the Colerain Township Of- • at the Providence Township Grove Road ...... 351 fice, 1803 Kirkwood Pike, Office, 200 Mt. Airy Road, Township of Mount Joy Kirkwood, Pennsylvania. New Providence, Pennsyl- Conestoga River: Township of Earl vania. Maps available for inspection Approximately 10,100 feet Township of Rapho upstream of Stehman at the Earl Township Office, Road ...... •227 517 North Railroad Avenue, Maps available for inspection New Holland, Pennsylvania. at the Rapho Township Of- Approximately 3,200 feet up- fice, 971 North Colebrook stream of U.S. Route 322 •333 Township of East Cocalico Maps available for inspection Road, Manheim, Pennsyl- Borough of Millersville, vania. Townships of Ephrata, at the East Cocalico Town- Upper Leacock ship Office, 100 Hill Road, Township of Upper Leacock Mill Creek: Denver, Pennsylvania. Maps available for inspection Approximately 4,500 feet Township of East Hempfield at the Upper Leacock Town- downstream of Park Drive •261 Maps available for inspection ship Office, 36 Hillcrest Ave- Approximately 450 feet at the East Hempfield Town- nue, Leola, Pennsylvania. downstream of T–763 ...... •458 ship Office, 1700 Nissley Township of Warwick City of Lancaster, Township Road, Landisville, Pennsyl- Maps available for inspection of Earl vania. at the Warwick Township Of- Pequea Creek: Township of East Lampeter fice, 315 Clay Road, Lititz, Approximately 3,700 feet Maps available for inspection Pennsylvania. downstream of Rawlinsville at the East Lampeter Town- Township of West Cocalico Road ...... •279 ship Office, 2205 Old Phila- Maps available for inspection Approximately 450 feet delphia Pike, Lancaster, at the West Cocalico Town- downstream of U.S. Route Pennsylvania. ship Office, 156 B West Main 30 ...... •346 Township of Eden Street, Reinholds, Pennsyl- Townships of Providence, Maps available for inspection vania. at the Eden Township Office, Leacock, Pequea, East Township of West Donegal Lampeter, West Lampeter, 489 Stony Hill Road, Quarryville, Pennsylvania. Maps available for inspection Paradise at the West Donegal Town- Beaver Creek: Township of Ephrata ship Office, 1 Municipal Approximately 325 feet Maps available for inspection Drive, Elizabethtown, Penn- downstream of North at the Ephrata Township Of- sylvania. • fice, 265 Akron Road, Eph- Church Street ...... 455 Township of West Hempfield Approximately 250 feet rata, Pennsylvania. downstream of North City of Lancaster Maps available for inspection Church Street ...... •456 Maps available for inspection at the West Hempfield Town- at the Lancaster City Office, ship Office, 3401 Marietta Township of Eden Avenue, Lancaster, Pennsyl- West Branch Octorano Creek: 120 North Duke Street, Lan- caster, Pennsylvania. vania. Approximately 3,900 feet Township of West Lampeter downstream of Mount Township of Leacock Maps available for inspection Pleasant Road ...... •497 Maps available for inspection at the Leacock Township Of- at the West Lampeter Town- Approximately 3,800 feet ship Office, 852 Village downstream of Mount fice, 3545 West Newport • Road, Intercourse, Pennsyl- Road, Lampeter, Pennsyl- Pleasant Road ...... 497 vania. Township of Colerain vania. Borough of Millersville Lees Creek: PUERTO RICO Approximately 480 feet Maps available for inspection downstream of Willow at the Millersville Borough Street ...... •456 Office, 10 Colonial Avenue, Commonwealth and Munici- Millersville, Pennsylvania. palities (FEMA Docket No. Approximately 420 feet D–7592) downstream of Willow Township of Mount Joy Street ...... •457 Maps available for inspection Rio Guamani: Township of Brecknock at the Mount Joy Township Approximately 100 meters Tributary No. 1 to Conestoga Office, 159 Merts Drive, Eliz- above the mouth of Carib- River: abethtown, Pennsylvania. bean Sea ...... *3.2 Just upstream of Barbara Township of Paradise Approximately 0.60 kilo- Street ...... •281 Maps available for inspection meters upstream of Puerto Approximately 610 feet up- at the Paradise Township Of- Rico Route 10 ...... *154.4 stream of Barbara Street ... •289 fice, 196 Blackhorse Road, Commonwealth of Puerto Borough of Millersville Paradise, Pennsylvania. Rico Little Conestoga Creek: Township of Penn Rio de Bayamon:
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#Depth in DEPARTMENT OF TRANSPORTATION Office of Crash Avoidance Standards, feet above ground. Vehicle Dynamics Division, at (202) *Elevation National Highway Traffic Safety 366–4921, and fax him at (202) 493– Source of Flooding and Location in feet Administration (NGVD) 2739. •Elevation in feet 49 CFR Part 571 For legal issues, you may call (NAVD) Christopher Calamita of the NHTSA [Docket No. NHTSA–04–19892] Office of Chief Counsel, at (202) 366– Approximately 100 meters 2992, and fax him at (202) 366–3820. downstream of Puerto Rico RIN 2127–AI63 Route 2 ...... *10.7 You may send mail to both of these Approximately 9.5 kilometers upstream of Puerto Rico Federal Motor Vehicle Safety officials at the National Highway Traffic Route 174 ...... *250.6 Standards; Hydraulic and Electric Safety Administration, 400 Seventh Commonwealth of Puerto Brake Systems Street, SW., Washington, DC 20590. Rico, Municipality of Baya- mon AGENCY: National Highway Traffic SUPPLEMENTARY INFORMATION: Rio de La Plata (Toa Baja): Safety Administration (NHTSA), Approximately 0.1 kilometer Department of Transportation (DOT). I. Background and Proposed above the confluence with Rulemaking Atlantic Ocean ...... *3.3 ACTION: Final rule. At downstream side of Puer- NHTSA has two brake standards for to Rico Route 2 ...... *11.0 SUMMARY: In this document, NHTSA is Commonwealth of Puerto medium and heavy vehicles. Federal establishing an option in the Federal Motor Vehicle Safety Standard (FMVSS) Rico motor vehicle safety standard on Rio Nigua: No. 105, Hydraulic and electric brake hydraulic and electric brake systems to Approximately 400 meters systems, applies to vehicles with upstream of mouth of Rio permit the use of a roll bar structure hydraulic brakes. FMVSS No. 121, Air Nigua ...... *3.2 during specified testing of brake systems Approximately 5.41 kilo- in single unit trucks and buses. This brake systems, applies to vehicles with meters upstream of Puerto air brakes. Rico Route 52 ...... *49.5 option is already available for similar Rio Coamo: testing of air braked trucks and buses. Although FMVSS No. 105 and 121 Approximately 2.16 kilo- Permitting the use of a roll bar structure have similar brake performance meters downstream of will help protect drivers and requirements, the two standards have Puerto Rico Route 1 ...... *3.0 technicians in the event of a rollover Approximately 2.15 kilo- differed with respect to their meters upstream of Puerto during testing of hydraulically-braked specifications concerning the use of a Rico Route 1 ...... *20.1 trucks and buses. The safety of drivers roll bar during these tests. Roll bars are Rio de La Plata (Toa Alta): and technicians is a primary concern sometimes added to vehicles for brake At downstream side of Puer- during vehicle testing. The use of a roll testing if there are concerns about a to Rico Route 2 ...... *11.0 bar structure offers protection to the Approximately 0.3 kilometer possible vehicle rollover. upstream of Puerto Rico drivers and technicians performing Route 824 ...... *22.0 brake tests conducted at lightly loaded On March 10, 1995, NHTSA Rio de La Plata: Overflow: vehicle weight. published a final rule amending FMVSS Approximately 0.79 kilometer No. 121 requiring all air braked vehicles DATES: Effective date: This final rule is downstream of the road to to be equipped with antilock brake effective January 18, 2005. Military Reservation ...... *2.3 systems (ABS) (60 FR 13216). The Approximately 0.45 kilometer Petitions: Petitions for reconsideration upstream of Puerto Rico must be received by January 31, 2005, braking-in-a-curve performance test for Route 854 ...... *6.7 and should refer to this docket and the truck tractors adopted in that final rule Rio Grande: notice number of this document and be included a manufacturer’s option for At the confluence with using a roll bar structure during Espiritu Santo River ...... *5.0 submitted to: Administrator, National At the Puerto Rico Route 3 .. *6.9 Highway Traffic Safety Administration, performance of that test at lightly loaded Maps available for inspection 400 Seventh Street, SW., Washington, vehicle weight (LLVW). Loading of a at the Puerto Rico Planning DC 20590. vehicle to test at the gross vehicle Board, Minilas Government weight rating (GVWR) already afforded Center, North Building, East Note that all petitions received will be Diego Avenue, Stop 22, San posted without change to http:// manufacturers the opportunity to use a Juan, Puerto Rico. dms.dot.gov including any personal roll bar structure. Municipality of Bayamon information provided. Please see the On December 12, 2001, the agency Maps available for inspection Privacy Act heading under Rulemaking at Carretera #2, Alcaldia de extended the option for use of a roll bar Bayamon, 4to piso Oficina de Analysis and Notices. structure on vehicles tested at lightly Ordenacion Territorial, Baya- Docket: For access to the docket to loaded vehicle weight in other FMVSS mon, Puerto Rico. read background documents or No. 121 tests, including the 60 mph comments received, go to http:// straight-line stop and the parking brake (Catalog of Federal Domestic Assistance No. dms.dot.gov at any time or to Room PL– grade holding tests (66 FR 64154). In 83.100, ‘‘Flood Insurance’’) 401 on the plaza level of the Nassif extending the option for using a roll bar Dated: December 8, 2004. Building, 400 Seventh Street, SW., structure to these tests, we determined Washington, DC, between 9 a.m. and 5 David I. Maurstad, that the roll bar option is equally Acting Director, Mitigation Division, p.m., Monday through Friday, except Federal holidays. appropriate for tractors as well as single- Emergency Preparedness and Response unit vehicles. Directorate. FOR FURTHER INFORMATION CONTACT: For [FR Doc. 04–27619 Filed 12–16–04; 8:45 am] non-legal issues, you may call Samuel NHTSA then established braking-in-a- BILLING CODE 9110–12–P Daniel Jr., Safety Standards Engineer, curve test requirements for hydraulic-
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braked single-unit trucks and buses that if they experience yaw at test speeds. adversely affect in a material way the are equipped with ABS and have a During the parking brake test, while the economy, a sector of the economy, GVWR greater than 10,000 pounds (68 vehicle is in the forward direction on a productivity, competition, jobs, the FR 47485; August 11, 2003). Again, the 20 percent grade, a failure of the brake environment, public health or safety, or concerns regarding possible rollover led system on one side of the vehicle can State, local, or Tribal governments or NHTSA to grant manufacturers the also cause the vehicle to yaw and communities; option to use a roll bar structure on perhaps roll over. (2) Create a serious inconsistency or single-unit trucks and buses undergoing Currently, heavy school buses are the otherwise interfere with an action taken the braking-in-a-curve test under only vehicles with a GVWR greater than or planned by another agency; FMVSS No. 105. 10,000 pounds required by FMVSS No. (3) Materially alter the budget impact On November 4, 2003, the agency 105 to meet the parking brake of entitlements, grants, user fees, or loan published a notice of proposed requirements. However, the agency has programs or the rights and obligations of rulemaking to permit the use of a roll requested comments on a proposal that recipients thereof; or bar structure on any vehicle with a would require all hydraulically braked (4) Raise novel legal or policy issues GVWR greater than 10,000 pounds vehicles with a GVWR greater than arising out of legal mandates, the during FMVSS No. 105 compliance 10,000 pounds to have parking brakes President’s priorities, or the principles testing of the parking brake system at that meet these same requirements (67 set forth in the Executive Order. LLVW, the service brake system at FR 66098; October 30, 2002). This rulemaking document was not LLVW, and the service brake system in The agency also notes that single-unit reviewed by the Office of Management partial failure mode at LLVW (68 FR trucks with a GVWR greater than 10,000 and Budget under E.O. 12866. It is also 62421). No comments were received. pounds may undergo brake system not considered to be significant under the Department’s Regulatory Policies II. Final Rule testing either as completed trucks or as chassis-cabs without bodies or and Procedures (44 FR 11034; February We are amending FMVSS No. 105 as equipment that would normally be 26, 1979). This document amends 49 CFR proposed in the November 2003 notice. installed by a final-stage manufacturer. 571.105 by including a manufacturer’s Today’s final rule gives manufacturers A completed vehicle is likely to have the option of using a roll bar structure option for the use of a roll bar structure more structure to protect a test driver on medium and heavy vehicles during during the performance testing of than an incomplete vehicle. If a compliance testing of the parking brake hydraulic brake systems. The completed truck were to roll over, the system at LLVW, the service brake amendment allows, at manufacturer’s impact force would be distributed system at LLVW, and the service brake option, the use of a roll bar structure across the body and cab of the truck. In system in partial failure mode at LLVW. when testing hydraulic braked vehicles the absence of a body or additional As explained in the notice of with a GVWR greater than 10,000 equipment during testing of a chassis- proposed rulemaking, performance pounds at lightly loaded vehicle weight. cab, the vehicle cab would receive a testing of brake systems at LLVW on Because of the configuration of these greater impact force during a rollover, vehicles with a GVWR greater than vehicles, they are susceptible to roll increasing the potential of harm to the 10,000 pounds may result in vehicle over during testing. We conclude that driver. Permitting the use of a roll bar rollover because of the configuration of permitting the use of a roll bar structure allows manufacturers to provide these vehicles. Trucks and buses with a will help protect drivers and additional protection for the test driver GVWR greater than 10,000 pounds often technicians in the event of a rollover in the event of a rollover. have a high center of gravity resulting in during these tests. As noted above, a low rollover threshold. Rollover III. Effective Date today’s final rule does not impose any threshold is the lateral acceleration at This final rule does not impose any new requirements. Instead, the final rule which a vehicle will roll over and for simply allows manufacturers the option trucks and buses with a GVWR greater new requirements. Instead, it simply allows manufacturers the option of a of a roll bar as an added safety measure than 10,000 pounds it is usually 0.5 g during the specified compliance tests. or less. In contrast, a typical light roll bar as an added safety measure during the specified compliance tests. The impacts are so small that a full vehicle has a rollover threshold between regulatory evaluation was not prepared. 0.8 g and 1.2 g. For tests performed at Since this final rule relieves a restriction GVWR, manufacturers can already and promotes safety for test drivers, it B. Regulatory Flexibility Act include roll bar structure weight in the will become effective 30 days after the In compliance with the Regulatory vehicle weight to provide test drivers date of this publication. Flexibility Act, 5 U.S.C. 601 et seq., and technicians additional safety. This IV. Rulemaking Analyses and Notices NHTSA has evaluated the effects of this final rule permits, at manufacturer’s proposed action on small entities. I option, the use of a roll bar structure on A. Executive Order 12866 and DOT hereby certify that this notice of these vehicles undergoing testing at Regulatory Policies and Procedures proposed rulemaking would not have a LLVW. Executive Order 12866, ‘‘Regulatory significant impact on a substantial Hydraulically-braked vehicles with a Planning and Review’’ (58 JR 51735, number of small entities. GVWR greater than 10,000 pounds must October 4, 1993), provides for making As explained above, the final rule meet the requirements of FMVSS No. determinations whether a regulatory does not require use of a roll bar 105, including 60 mph straight-line action is ‘‘significant’’ and therefore structure and therefore does not impose stopping distance requirements and, for subject to Office of Management and any increased costs or other burdens on heavy school buses, parking brake Budget (OMB) review and to the truck manufacturers. The final rule requirements. During straight line stop requirements of the Executive Order. simply permits the use of a roll bar testing, an equipment malfunction or a The Order defines a ‘‘significant structure at the manufacturer’s option, problem with the ABS can create the regulatory action’’ as one that is likely on test vehicles undergoing brake potential for these trucks and buses to to result in a rule that may: testing. Accordingly, there is no yaw. Because of the low rollover (1) Have an annual effect on the significant impact on small businesses, threshold, these vehicles may roll over economy of $100 million or more or small organizations, or small
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governmental units by these of performance which is not identical to PART 571—FEDERAL MOTOR amendments. the Federal standard, except to the VEHICLE SAFETY STANDARDS extent that the State requirement C. Executive Order No. 13132 I imposes a higher level of performance 1. The authority citation for part 571 NHTSA has analyzed this final rule in and applies only to vehicles procured continues to read as follows: accordance with the principles and for the State’s use. 49 U.S.C. 21461 sets Authority: 49 U.S.C. 322, 30111, 30115, criteria set forth in Executive Order forth a procedure for judicial review of 30117 and 30166; delegation of authority at 13132, Federalism and has determined final rules establishing, amending or 49 CFR 1.50. that this final rule does not have revoking Federal motor vehicle safety I 2. Section 571.105 is amended by sufficient Federal implications to standards. That section does not require revising S6.1.2, S7.7.3, S7.8, and S7.9.1 warrant consultation with State and submission of a petition for to read as follows: local officials or the preparation of a reconsideration or other administrative federalism summary impact statement. proceedings before parties may file suit § 571.105 Standard No. 105; Hydraulic and The final rule does not have any in court. electric braking systems. substantial impact on the States, or on * * * * * the current Federal-State relationship, H. Unfunded Mandates Reform Act S6.1.2 For applicable tests specified or on the current distribution of power in S7.5(a), S7.7, S7.8, and S7.9, vehicle and responsibilities among the various The Unfunded Mandates Reform Act weight is lightly loaded vehicle weight, local officials. of 1995 requires agencies to prepare a with the added weight, except for the written assessment of the costs, benefits roll bar structure allowed for trucks and D. National Environmental Policy Act and other effects of proposed or final buses with a GVWR greater than 10,000 NHTSA has analyzed this final rule rules that include a Federal mandate pounds, distributed in the front for the purposes of the National likely to result in the expenditure by passenger seat area in passenger cars, Environmental Policy Act. The agency State, local or tribal governments, in the multipurpose passenger vehicles, and has determined that implementation of aggregate, or by the private sector, of trucks, and in the area adjacent to the this action will not have any significant more than $100 million annually driver’s seat in buses. (adjusted for inflation with base year of impact on the quality of the human * * * * * environment. 1995). This rulemaking will not result in S7.7.3 Lightly loaded vehicle. Repeat expenditures by State, local or tribal E. Paperwork Reduction Act S7.7.1 or S7.7.2 as applicable except governments, in the aggregate, or by the with the vehicle at lightly loaded This final rule does not contain any private sector in excess of $100 million vehicles weight or at manufacturer’s collection of information requirements annually. option, for a vehicle with GVWR greater requiring review under the paperwork I. Regulation Identifier Number (RIN) than 10,000 pounds, at lightly loaded Reduction Act of 1995 (Pub. L. 104–13). vehicle weight plus not more than an F. National Technology Transfer and The Department of Transportation additional 1,000 pounds for a roll bar Advancement Act assigns a regulation identifier number structure on the vehicle. (RIN) to each regulatory action listed in Under the National Technology * * * * * the Unified Agenda of Federal transfer and Advancement Act of 1995 S7.8 Service brake system test— Regulations. The Regulatory Information (NTTAA) (Pub. L. 104–113), ‘‘all Federal lightly loaded vehicle (third agencies and departments shall use Service Center publishes the Unified effectiveness) test. Make six stops from technical standards that are developed Agenda in April and October of each 60 mph with vehicle at lightly vehicle or adopted by voluntary consensus year. You may use the RIN contained in weight, or at the manufacturer’s option standards bodies, using such technical the heading at the beginning of this for a vehicle with GVWR greater than standards as a means to carry out policy document to find this action in the 10,000 pounds, at lightly loaded vehicle objectives or activities determined by Unified Agenda. weight plus not more than an additional 1,000 pounds for a roll bar structure on the agencies and departments.’’ Society J. Privacy Act of Automotive Engineers (SAE) the vehicle. (This test is not applicable Recommended Practice J1626 APR96, Anyone is able to search the to a vehicle which has a GVWR of not Braking, Stability, and Control electronic form of all comments less than 7,716 pounds and not greater Performance Test Procedures for Air- received into any of our dockets by the than 10,000 pounds and is not a school Brake-Equipped Truck Tractors, name of the individual submitting the bus.) includes an option for using a roll bar comment (or signing the comment, if * * * * * structure for testing at LLVW. While the submitted on behalf of an association, S7.9.1 With the vehicle at lightly SAE practice applies to air braked business, labor union, etc.) You may loaded vehicle weight or at the trucks, the SAE tests performed at review DOT’s complete Privacy Act manufacturer’s option for a vehicle with LLVW are similar to tests performed at Statement in the Federal Register a GVWR greater than 10,000 pounds, at LLVW under FMVSS No. 105. The final published on April 11, 2000 (volume 65, lightly loaded vehicle weight plus not rule permits the use of a roll bar number 70; pages 19477–78) or you may more than an additional 1,000 pounds structure in a manner similar to that in visit http://dms.dot.gov. for a roll bar structure on the vehicle, the SAE recommended practice. alter the service brake system to List of Subjects in 49 CFR Part 571 produce any one rupture or leakage type G. Civil Justice Reform of failure, other than a structural failure Imports, Motor vehicle safety, Motor The final rule does not have any of a housing that is common to two or vehicles, Rubber and rubber products, retroactive effect. Under 49 U.S.C. more subsystems. Determine the control and Tires. 21403, whenever a Federal motor force, pressure level, or fluid level (as vehicle safety standard is in effect, a I In consideration of the foregoing, appropriate for the indicator being State may not adopt or maintain a safety NHTSA is amending 49 CFR part 571 as tested) necessary to activate the brake standard applicable to the same aspect set forth below. system indicator lamp. Make four stops
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if the vehicle is equipped with a split service brake control. Restore the Dated: Issued on December 13, 2004. service brake system, or 10 stops if the service brake system to normal at Jeffrey W. Runge, vehicle is not so equipped, each from 60 completion of this test. Administrator. mph, by a continuous application of the * * * * * [FR Doc. 04–27595 Filed 12–16–04; 8:45 am] BILLING CODE 4910–59–M
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Proposed Rules Federal Register Vol. 69, No. 242
Friday, December 17, 2004
This section of the FEDERAL REGISTER Western En Route and Oceanic RNAV GPS SIAP requires additional contains notices to the public of the proposed Operations, Airspace Branch, 1601 Lind Class E controlled airspace. This issuance of rules and regulations. The Avenue, SW., Renton, WA 98055. additional Class E airspace is necessary purpose of these notices is to give interested SUPPLEMENTARY INFORMATION: for the safety of IFR aircraft executing persons an opportunity to participate in the the new RNAV GPS SIAP Burns rule making prior to the adoption of the final Comments Invited rules. Municipal Airport. Controlled airspace Interested parties are invited to is necessary where there is a participate in this proposed rulemaking requirement for IFR services, which DEPARTMENT OF TRANSPORTATION by submitting such written data, views, includes arrival, departures, and or arguments, as they may desire. transitioning to/from the terminal or en Federal Aviation Administration Comments that provide the factual basis route environment. supporting the views and suggestions Class E airspace designations are presented are particularly helpful in 14 CFR Part 71 published in paragraph 6005 of FAA developing reasoned regulatory Order 7400.9M dated August 30, 2004, [Docket FAA 2004–18915; Airspace Docket decisions on the proposal. Comments 04–ANM–11] and effective September 16, 2004, which are specifically invited on the overall is incorporated by reference in 14 CFR regulatory, aeronautical, economic, Proposed Revision of Class E part 71.1. The Class E airspace environmental, and energy-related Airspace; Burns, OR designation listed in this document will aspects of the proposal. be published subsequently in this AGENCY: Federal Aviation Communications should identify Docket Administration (FAA), DOT. FAA 2004–18915; Airspace Docket 04– Order. ACTION: Notice of proposed rulemaking ANM–11, and be submitted in triplicate The FAA has determined that this (NPRM). to the address listed above. Commenters proposed regulation only involves an wishing the FAA to acknowledge established body of technical SUMMARY: This proposal would revise receipt of their comments on this action regulations for which frequent and Class E airspace at Burns Municipal must submit, with those comments, a routine amendments are necessary to Airport, Burns, OR. This additional self-addressed stamped postcard on keep them operationally current. airspace is necessary to accommodate a which the following statement is made: Therefore, this proposed regulation—(1) new Area Navigation (RNAV) Global ‘‘Comments to Docket FAA 2004–18915 is not a ‘‘significant regulatory action’’ Positioning System (GPS) Standard Airspace Docket 04–ANM–11.’’ The under Executive Order 12866; (2) is not Instrument Approach Procedure (SIAP) postcard will be date/time stamped and a ‘‘significant rule’’ under DOT at the Burns Municipal Airport. This returned to the commenter. Regulatory Policies and Procedures (44 change is proposed to improve the FR 11034; February 26, 1979); and (3) Availability of NPRM safety of Instrument Flight Rules (IFR) does not warrant preparation of a aircraft executing the new RNAV GPS An electronic copy of this document regulatory evaluation as the anticipated SIAP at Burns Municipal Airport. may be downloaded through the impact is so minimal. Since this is a DATES: Comments must be received by Internet at http://dms.dot.gov. Recently routine matter that will only effect air January 31, 2005. published rulemaking documents can traffic procedures and air navigation, it also be accessed through the FAA’s Web is certified that this proposed rule ADDRESSES: Send Comments on this page at http://www.faa.gov or the proposal to the Docket Management would not have a significant economic Superintendent of Document’s Web impact on a substantial number of small System, U.S. Department of page at http://www.access.gop.gov/nara. Transportation, Room Plaza 401, 400 entities under the criteria of the Additionally, a copy of this notice Regulatory Flexibility Act. Seventh Street, SW., Washington, DC may be obtained by submitting a request 20590–0001. You must identify the to the Federal Aviation Administration, List of Subjects in 14 CFR Part 71 docket number, FAA 2004–18915 1601 Lind Avenue, SW., Renton, WA, Airspace Docket 04–NAM–11, at the 98055. Communications must identify Airspace, Incorporation by reference, beginning of your comments. You may both document numbers for this notice. Navigation (air). also submit comments on the Internet at Persons interested in being placed on a The Proposed Amendment http://dms.dot.gov. You may review the mailing list for future NPRMs should public docket containing the proposal, contact the FAA’s Office of Rulemaking, Accordingly, pursuant to the any comments received, and any final at 202–267–9677, to request a copy of authority delegated to me, the Federal dispositions in person in the Docket Advisory Circular No. 11–2A, Notice of Aviation Administration proposed to Office between 9 a.m. and 5 p.m., Proposed Rulemaking Distribution amend 14 CFR part 71 as follows: Monday through Friday, except federal System, which describes the application holidays. The Docket Office (telephone procedures. PART 71—DESIGNATION OF CLASS A, number 1–800–647–5527) is on the CLASS B, CLASS C, CLASS D, AND plaza level of the Department of The Proposal CLASS E AIRSPACE AREAS; Transportation NASSIF Building at the This action proposed to amend Title AIRWAYS; ROUTES; AND REPORTING above address. 14 Code of Federal Regulations, part 71 POINTS An informal docket may also be (14 CFR part 71) by revising Class E examined during normal business hours airspace at Burns Municipal Airport, 1. The authority citation for 14 CFR at the Federal Aviation Administration, Burns, OR. The establishment of a new part 71 continues to read as follows:
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Authority: 49 U.S.C. 106(g), 40103, 40113, from 700 feet Above Ground Level stamped and returned to the 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– (AGL) is needed to contain aircraft commenter. 1693 Comp., p. 389. executing the approach. The area would Availability of NPRMs § 71.1 [Amended] be depicted on aeronautical charts for pilot reference. An electronic copy of this document 2. The incorporation by reference in DATES: may be downloaded through the 14 CFR part 71.1 of the Federal Aviation Comments must be received on or before January 18, 2005. Internet at http://dms.dot.gov. Recently Administration Order 7400.9M, published rulemaking documents can ADDRESSES: Send comments on the Airspace Designations and Reporting also be accessed through the FAA’s Web Points, dated August 30, 2004, and proposal to the Docket Management System, U.S. Department of page at http://www.faa.gov or the effective September 16, 2004, is Superintendent of Documents Web page amended as follows: Transportation, Room Plaza 401, 400 Seventh Street SW., Washington, DC at http://www.access.gpo.gov/nara. Additionally, any person may obtain Paragraph 6005 Class E airspace areas 20590–0001. You must identify the a copy of this notice by submitting a extending upward from 700 feet or more docket number FAA–2004–19458/ request to the Federal Aviation above the surface of the earth. Airspace Docket No. 04–AEA–11 at the Administration, Office of Air Traffic * * * * * beginning of your comments. You may Airspace Management, ATA–400, 800 also submit comments on the Internet at ANM OR E5 Burns, OR [Revised] Independence Avenue, SW., http://dms.dot.gov. Burns Municipal Airport, Burns, OR Washington, DC 20591, or by calling You may review the public docket (Lat. 43°35′32″ N., long. 118°57′18″ W.) (202) 267–8783. Communications must containing the proposal, any comments Wildhorse VOR/DME identify both docket numbers for this ° ′ ″ ° ′ ″ received, and any final disposition in (Lat. 43 35 35 N., long. 118 57 18 W.) notice. Persons interested in being person in the Dockets Office between 9 That airspace extending upward from 700 placed on a mailing list for future a.m. and 5 p.m., Monday through feet above the surface of the earth within 10.9 NPRMs should contact the FAA’s Office Friday, except Federal holidays. The miles northeast and 10.1 miles southwest of of Rulemaking, (202) 267–9677, to the 141° and 321° radials of the Wildhorse Docket Office (telephone 1–800–647– request a copy of Advisory Circular No. VOR/DME extending from 9.6 miles 5527) is on the plaza level of the 11–2A, Notice of Proposed Rulemaking southeast to 9.2 miles northwest of the VOR/ Department of Transportation NASSIF DME; that airspace extending upward from Distribution System, which describes Building at the above address. the application procedure. 1,200 feet above the surface of the earth An informal docket may also be within 10.9 miles northeast and 16.0 miles examined during normal business hours The Proposal southwest of the 141° and 321° radials of the Wildhorse VOR/DME extending from 20.1 at the office of the Regional Air Traffic The FAA is considering an miles southeast to 9.2 miles northwest of the Division, Federal Aviation amendment to Part 71 of the Federal VOR/DME. Administration, Eastern Region, 1 Aviation Regulations (14 CFR Part 71) to * * * * * Aviation Plaza, Jamaica, NY 11434– establish Class E airspace area at 4809. Issued in Seattle, Washington, on Mifflintown, PA. The development of a November 26, 2004. FOR FURTHER INFORMATION CONTACT: Mr. SIAP to serve flights operating IFR into Suzanne Alexander, Francis T. Jordan, Jr., Airspace Mifflintown Airport makes this action Acting Area Director, Western En Route and Specialist, Airspace Branch, AEA–520, necessary. Controlled airspace Oceanic Operations. Eastern Region, 1 Aviation Plaza, extending upward from 700 feet AGL is [FR Doc. 04–27687 Filed 12–16–04; 8:45 am] Jamaica, NY 11434–4809, telephone needed to accommodate aircraft using (718) 553–4521. the SIAP. Class E airspace designations BILLING CODE 4910–13–M SUPPLEMENTARY INFORMATION: for airspace areas extending upward from 700 feet or more above the surface Comments Invited DEPARTMENT OF TRANSPORTATION are published in Paragraph 6005 of FAA Interested parties are invited to Order 7400.9M, dated August 30, 2004, Federal Aviation Administration participate in this proposed rulemaking and effective September 16, 2004, which by submitting such written data, views, is incorporated by reference in 14 CFR 14 CFR Part 71 or arguments as they may desire. 71.1. The Class E airspace designation Comments that provide the factual basis listed in this document would be [Docket No.FAA–2004–19458; Airspace supporting the views and suggestions published subsequently in the Order. Docket No. 04–AEA–11] presented are particularly helpful in The FAA has determined that this Proposed Establishment of Class E developing reasoned regulatory proposed regulation only involves an Airspace; Mifflintown, PA decisions on the proposal. Comments established body of technical are specifically invited on the overall regulations for which frequent and AGENCY: Federal Aviation regulatory, economic, environmental, routine amendments are necessary to Administration (FAA), DOT. and energy-related aspects of the keep them operationally current. ACTION: Notice of proposed rulemaking. proposal. Communications should Therefore, this proposed regulation—(1) identify both docket numbers and be is not a ‘‘significant regulatory action’’ SUMMARY: This notice proposes to submitted in triplicate to the address under Executive Order 12866; (2) is not establish Class E airspace area at listed above. Commenters wishing the a ‘‘significant rule’’ under DOT Mifflintown, PA. The development of a FAA to acknowledge receipt of their Regulatory Policies and Procedures (44 Standard Instrument Approach comments on this notice must submit FR 11034; February 26, 1979); and (3) Procedure (SIAP) based on area with those comments a self-addressed, does not warrant preparation of a navigation (RNAV) to serve flights into stamped postcard on which the regulatory evaluation as the anticipated Mifflintown Airport, Mifflintown, PA following statement is made: impact is so minimal. Since this is a under Instrument Flight Rules (IFR) has ‘‘Comments to Docket No. FAA–2004– routine matter that would only affect air made this proposal necessary. 19458/Airspace Docket No. 04–AEA– traffic procedures and air navigation, it Controlled airspace extending upward 11.’’ The postcard will be date/time is certified that this proposed rule
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would not have significant economic SUMMARY: In the Rules and Regulations 409(p). The text of those temporary impact on a substantial number of small section of this issue of the Federal regulations also serves as the text of entities under the criteria of the Register, the IRS is issuing temporary these proposed regulations. The Regulatory Flexibility Act. regulations that provide guidance on the preamble to the temporary regulations definition and effects of a prohibited explains the temporary regulations. List of Subjects in 14 CFR Part 71 allocation under section 409(p), Special Analyses Airspace, Incorporation by reference, identification of disqualified persons Navigation (air). and determination of a nonallocation It has been determined that this notice of proposed rulemaking is not a The Proposed Amendment year, calculation of synthetic equity under section 409(p)(5), and standards significant regulatory action as defined In consideration of the foregoing, the for determining whether a transaction is in Executive Order 12866. Therefore, a Federal Aviation Administration an avoidance or evasion of section regulatory assessment is not required. It proposes to amend 14 CFR Part 71 as 409(p). These proposed regulations also has been determined that section follows: would generally affect plan sponsors of, 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply PART 71—[AMENDED] and participants in, ESOPs holding stock of Subchapter S corporations. The to these regulations. Because § 1.409(p)– 1. The authority citation for 14 CFR text of those temporary regulations also 1 imposes no new collection of Part 71 continues to read as follows: serves as the text of these proposed information on small entities, a Regulatory Flexibility Analysis under Authority: 49 U.S.C. 106(g), 40103, 40113, regulations. This document also 40120; E.O. 10854; 24 FR 9565, 3 CFR, 1959– provides notice of a public hearing on the Regulatory Flexibility Act (5 U.S.C. 1963 Comp., p. 389. these proposed regulations. chapter 6) is not required. Pursuant to DATES section 7805(f) of the Internal Revenue § 71.1 [Amended] : Written or electronic comments must be received by March 17, 2005. Code, this notice of proposed 2. The incorporation by reference in Requests to speak (with outlines of oral rulemaking will be submitted to the 14 CFR 71.1 of Federal Aviation Chief Counsel for Advocacy of the Small comments to be discussed) at the public Administration Order 7400.9M, dated Business Administration for comment hearing scheduled for April 20, 2005, at August 30, 2004, and effective on its impact on small business. 10 a.m. must be received by March 14, September 16, 2004, is proposed to be 2005. Comments and Requests for a Public amended as follows: ADDRESSES: Send submissions to: Hearing Paragraph 6005 Class E airspace areas CC:PA:LPD:PR (REG–129709–03), Room Before these proposed regulations are extending upward from 700 feet or more 5203, Internal Revenue Service, POB above the surface of the earth. adopted as final regulations, 7604, Ben Franklin Station, Washington, consideration will be given to any * * * * * DC 20044. Submissions may be hand written (a signed original and 8 copies) AEA PA E5 Mifflintown, PA (NEW) delivered Monday through Friday or electronic comments that are Mifflintown Airport, Mifflintown, PA between the hours of 8 a.m. and 4 p.m. submitted timely to the IRS. All (Lat. 40°36′04″ N., long. 77°24′18″ W.) to: CC:PA:LPD:PR (REG–129709–03), comments will be available for public That airspace extending upward from 700 Courier’s Desk, Internal Revenue inspection and copying. feet above the surface within a 7-mile radius Service, 1111 Constitution Avenue, A public hearing has been scheduled of Mifflintown Airport, excluding the portion NW., Washington, DC. Alternatively, for April 20, 2005, at 10 a.m. in the IRS that coincides with the Reedsville, PA, Class taxpayers may submit comments Auditorium, Internal Revenue Building, E airspace area. electronically via the IRS Internet site at 1111 Constitution Avenue NW., * * * * * http://www.irs.gov/regs or the Federal Washington, DC. All visitors must Issued in Jamaica, New York, on December eRulemaking Portal at http:// present photo identification to enter the 10, 2004. www.regulations.gov (indicate IRS and building. Because of access restrictions, John G. McCartney, REG–129703–03). visitors will not be admitted beyond the Staff Manager of Eastern Terminal Area FOR FURTHER INFORMATION CONTACT: immediate entrance area more than 30 Operations. Concerning the proposed regulations, minutes before the hearing starts at the [FR Doc. 04–27688 Filed 12–16–04; 8:45 am] John Ricotta at (202) 622–6060; Constitution Avenue entrance. For BILLING CODE 4910–13–M concerning submissions of comments, information about having your name contact Guy Traynor at (202) 622–7180 placed on the building access list to (not toll-free numbers). attend the hearing, see the FOR FURTHER DEPARTMENT OF THE TREASURY SUPPLEMENTARY INFORMATION: INFORMATION CONTACT section of this preamble. Background Internal Revenue Service The rules of 26 CFR 601.601(a)(3) Temporary regulations in the Rules apply to the hearing. Persons who wish 26 CFR Part 1 and Regulations portion of this issue of to present oral comments at the hearing the Federal Register amend the Income must submit written comments and an [REG–129709–03] Tax Regulations (26 CFR part 1) relating outline of the topics to be discussed and RIN 1545–BC34 to section 409(p). The temporary the time to be devoted to each topic regulations contain rules relating to the (signed original and eight (8) copies) by Prohibited Allocations of Securities in definition and effects of a prohibited March 14, 2005. A period of 10 minutes an S Corporation allocation under section 409(p), will be allotted to each person for AGENCY: Internal Revenue Service (IRS), identification of disqualified persons making comments. An agenda showing Treasury. and determination of a nonallocation the scheduling of the speakers will be year, calculation of synthetic equity prepared after the deadline for receiving ACTION: Notice of proposed rulemaking under section 409(p)(5), and standards outlines has passed. Copies of the by cross-reference to temporary for determining whether a transaction is agenda will be available free of charge regulations and notice of public hearing. an avoidance or evasion of section at the hearing.
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Drafting Information proposed rule would also allow the and place announced by a later notice The principal author of these bridge owner to require a 4-hour in the Federal Register. advance notice for openings from 11 regulations is John Ricotta of the Office Background and Purpose of the Division Counsel/Associate Chief p.m. to 7 a.m., all year, and all day from November 1 through April 30. This rule The S35 Bridge has a vertical Counsel (Tax Exempt and Government clearance of 25 feet at mean high water Entities). However, other personnel is expected to relieve the bridge owner of the burden of crewing the bridge at and 30 feet at mean low water in the from the IRS and Treasury participated closed position. The existing in their development. all times while still providing for the reasonable needs of navigation. drawbridge operation regulations listed List of Subjects in 26 CFR Part 1 DATES: Comments must reach the Coast at 33 CFR 117.709(a), require the bridge to open on signal; except that, from May Income taxes, Reporting and Guard on or before February 15, 2005. 15 through October 15 from 7 a.m. to 7 recordkeeping requirements. ADDRESSES: You may mail comments and related material to Commander p.m., the draw need only open on the Proposed Amendments to the (obr), First Coast Guard District Bridge hour. From December 1 through March Regulations Branch, One South Street, Battery Park 31 from 11 p.m. to 7 a.m., the draw need Accordingly, 26 CFR part 1 is Building, New York, New York 10004, not be opened for the passage of vessels. Cheesequake Creek is navigated proposed to be amended as follows: or deliver them to the same address predominately by small recreational between 7 a.m. and 3 p.m., Monday vessels between April and November PART 1—INCOME TAXES through Friday, except Federal holidays. only. The bridge seldom opens during The telephone number is (212) 668– Paragraph 1. The authority citation for the winter months December through 7165. The First Coast Guard District, part 1 is amended by adding an entry in March. numerical order to read, in part, as Bridge Branch, maintains the public The bridge owner, New Jersey follows: docket for this rulemaking. Comments Department of Transportation (NJDOT), and material received from the public, Authority: 26 U.S.C. 7805 * * *. requested that the drawbridge operation as well as documents indicated in this regulations for the S35 Bridge be Section 1.409(p)–1 also issued under 26 preamble as being available in the U.S.C. 409(p)(7)(A). * * * changed to allow the bridge to open docket, will become part of this docket only on the hour 7 a.m. to 8 p.m., from Par. 2. Section 1.409(p)–1 is added to and will be available for inspection or May 1 through October 31. The hourly read as follows: copying at the First Coast Guard openings are currently in effect from 7 District, Bridge Branch, 7 a.m. to 3 p.m., a.m. to 7 p.m. from May 15 through § 1.409(p)–1 Prohibited allocation of Monday through Friday, except Federal securities in an S corporation. October 15. holidays. In addition, this proposal would also [The text of proposed § 1.409(p)–1 is the FOR FURTHER INFORMATION CONTACT: Joe allow the bridge owner to require a 4- same as the text of § 1.409(p)–1T published Arca, Project Officer, First Coast Guard hour advance notice for bridge openings elsewhere in this issue of the Federal District, (212) 668–7069. from 11 p.m. to 7 a.m., all year round, Register]. SUPPLEMENTARY INFORMATION: and all day from November 1 through Mark E. Matthews, Request for Comments April 30. Deputy Commissioner for Services and Discussion of Proposal Enforcement. We encourage you to participate in [FR Doc. 04–27295 Filed 12–16–04; 8:45 am] this rulemaking by submitting This proposed rule would amend 33 comments or related material. If you do BILLING CODE 4830–01–P CFR 117.709 by revising paragraph (a) so, please include your name and extending the hourly bridge opening address, identify the docket number for time period by 1 hour each day from this rulemaking (CGD01–04–126), May 1 through October 31. In addition, DEPARTMENT OF HOMELAND indicate the specific section of this this proposed rule would allow the SECURITY document to which each comment bridge owner to require a 4-hour Coast Guard applies, and give the reason for each advance notice for bridge openings from comment. Please submit all comments 11 p.m. to 7 a.m., all year round and all 33 CFR Part 117 and related material in an unbound day from November 1 through April 30. format, no larger than 81⁄2 by 11 inches, [CGD01–04–126] suitable for copying. If you would like Regulatory Evaluation to know if they reached us, please This proposed rule is not a RIN 1625–AA09 enclose a stamped, self-addressed ‘‘significant regulatory action’’ under Drawbridge Operation Regulations; postcard or envelope. We will consider section 3(f) of Executive Order 12866, Cheesequake Creek, NJ. all comments and material received Regulatory Planning and Review, and during the comment period. We may does not require an assessment of AGENCY: Coast Guard, DHS. change this proposed rule in view of potential costs and benefits under ACTION: Notice of proposed rulemaking. them. 6(a)(3) of that Order. The Office of Management and Budget has not SUMMARY: The Coast Guard proposes to Public Meeting reviewed it under that Order. It is not change the drawbridge operating We do not now plan to hold a public ‘‘significant’’ under the regulatory regulations governing the operation of meeting. But you may submit a request policies and procedures of the the S35 Bridge, mile 0.0, across for a meeting by writing to the First Department of Homeland Security. Cheesequake Creek at Morgan, South Coast Guard District, Bridge Branch, at We expect the economic impact of Amboy, New Jersey. This proposed rule the address under ADDRESSES explaining this proposed rule to be so minimal that would allow the bridge to open on the why one would be beneficial. If we a full Regulatory Evaluation, under the hour only from 7 a.m. to 8 p.m., May 1 determine that one would aid this regulatory policies and procedures of through October 30. In addition, this rulemaking, we will hold one at a time DHS, is unnecessary.
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This conclusion is based on the fact discuss the effects of this rule elsewhere have concluded that there are no factors that the bridge will continue to open for in this preamble. in this case that would limit the use of vessel traffic during the time periods Taking of Private Property a categorical exclusion under section vessel traffic has historically required 2.B.2 of the Instruction. Therefore, this the bridge to open. This proposed rule would not effect a rule is categorically excluded, under taking of private property or otherwise Small Entities figure 2–1, paragraph (32)(e), of the have taking implications under E.O. Instruction, from further environment Under the Regulatory Flexibility Act 12630, Governmental Actions and documentation because it has been (5 U.S.C. 601–612), we considered Interference with Constitutionally determined that the promulgation of whether this proposed rule would have Protected Property Rights. operating regulations for drawbridges a significant economic impact on a Civil Justice Reform substantial number of small entities. are categorically excluded. The term ‘‘small entities’’ comprises This proposed rule meets applicable List of Subjects in 33 CFR Part 117 small businesses, not-for-profit standards in sections 3(a) and 3(b)(2) of organizations that are independently Executive Order 12988, Civil Justice Bridges. Reform, to minimize litigation, owned and operated and are not Regulations dominant in their fields, and eliminate ambiguity, and reduce governmental jurisdictions with burden. For the reasons set out in the populations of less than 50,000. Protection of Children preamble, the Coast Guard proposes to The Coast Guard certifies under amend 33 CFR part 117 as follows: section 5 U.S.C. 605(b), that this We have analyzed this proposed rule proposed rule would not have a under Executive Order 13045, PART 117—DRAWBRIDGE significant economic impact on a Protection of Children from OPERATION REGULATIONS substantial number of small entities. Environmental Health Risks and Safety This conclusion is based on the fact Risks. This rule is not an economically 1. The authority citation for part 117 that the bridge will continue to open for significant rule and would not create an continues to read as follows: vessel traffic during the time periods environmental risk to health or risk to vessel traffic has historically required safety that may disproportionately affect Authority: 33 U.S.C. 499; Department of the bridge to open. children. Homeland Security Delegation No. 0170.1; 33 CFR 1.05–1(g); section 117.255 also issued If you think that your business, Indian Tribal Governments organization, or governmental under the authority of Pub. L. 102–587, 106 jurisdiction qualifies as a small entity This rule does not have tribal Stat. 5039. implications under Executive Order and that this rule would have a 2. Section 117.709 is amended by 13175, Consultation and Coordination significant economic impact on it, revising paragraph (a) to read as follows: please submit a comment (see with Indian Tribal Governments, ADDRESSES) explaining why you think it because it would not have a substantial § 117.709 Cheesequake Creek. qualifies and how and to what degree direct effect on one or more Indian this rule would economically affect it. tribes, on the relationship between the (a) The draw of the S35 Bridge, at Federal Government and Indian tribes, mile 0.0, at Morgan, South Amboy, New Collection of Information or on the distribution of power and Jersey, shall operate as follows: This proposed rule would call for no responsibilities between the Federal (1) From May 1 through October 31 new collection of information under the Government and Indian tribes. from 7 a.m. to 8 p.m., the draw need Paperwork Reduction Act of 1995 (44 Energy Effects only open on the hour. From 8 p.m. to U.S.C. 3501–3520). 11 p.m. the Draw shall open on signal. We have analyzed this rule under From 11 p.m. to 7 a.m. the draw shall Federalism Executive Order 13211, Actions open after at least a 4-hour advance A rule has implications for federalism Concerning Regulations That notice is given. under Executive Order 13132, Significantly Affect Energy Supply, Federalism, if it has a substantial direct Distribution, or Use. We have (2) From November 1 through April effect on State or local governments and determined that it is not a ‘‘significant 30 the draw shall open on signal after would either preempt State law or energy action’’ under that order because at least a 4-hour advance notice is given. impose a substantial direct cost of it is not a ‘‘significant regulatory action’’ * * * * * compliance on them. We have analyzed under Executive Order 12866 and is not this proposed rule under that Order and likely to have a significant adverse effect Dated: December 8, 2004. have determined that it does not have on the supply, distribution, or use of David P. Pekoske, implications for federalism. energy. It has not been designated by the Rear Admiral, U.S. Coast Guard, Commander, Administrator of the Office of First Coast Guard District. Unfunded Mandates Reform Act Information and Regulatory Affairs as a [FR Doc. 04–27675 Filed 12–16–04; 8:45 am] The Unfunded Mandates Reform Act significant energy action. Therefore, it BILLING CODE 4910–15–P of 1995 (2 U.S.C. 1531–1538) requires does not require a Statement of Energy Federal agencies to assess the effects of Effects under Executive Order 13211. their discretionary regulatory actions. In particular, the Act addresses actions Environment that may result in the expenditure by a We have analyzed this proposed rule State, local, or tribal government, in the under Commandant Instruction aggregate, or by the private sector of M16475.1D, which guides the Coast $100,000,000 or more in any one year. Guard in complying with the National Though this proposed rule would not Environmental Policy Act of 1969 result in such an expenditure, we do (NEPA) (42 U.S.C. 4321–4370f), and
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ENVIRONMENTAL PROTECTION comments, the direct final rule will be SUMMARY: EPA proposes to approve a AGENCY withdrawn and all public comments revision to the Missouri State received will be addressed in a Implementation Plan (SIP) and 40 CFR Part 52 subsequent final rule based on this rule. Operating Permits Program. EPA [R04–OAR–2004–KY–0001–200425(b); FRL– The EPA will not institute a second proposes to approve a revision to 7848–8] comment period on this document. Any Missouri rule ‘‘Submission of Emission parties interested in commenting on this Data, Emission Fees, and Process Approval and Promulgation of document should do so at this time. Information.’’ This revision will ensure Implementation Plans Kentucky: 1- DATES: Written comments must be consistency between the State and the Hour Ozone Maintenance Plan Update received on or before January 18, 2005. federally-approved rules and ensure for Edmonson Area Federal enforceability of the State’s air ADDRESSES: Comments may be program rule revision. AGENCY: Environmental Protection submitted by mail to: Rosymar De La DATES: Comments on this proposed Agency (EPA). Torre Colo´n, Regulatory Development action must be received in writing by ACTION: Proposed rule. Section, Air Planning Branch, Air, Pesticides and Toxics Management January 18, 2005. SUMMARY: Today’s action consists of two Division, U.S. Environmental Protection ADDRESSES: Comments may be mailed to distinct but related final rulemakings Agency, Region 4, 61 Forsyth Street, Leland Daniels, Environmental briefly characterized here and further SW., Atlanta, Georgia 30303–8960. Protection Agency, Air Planning and discussed in the SUPPLEMENTARY Comments may also be submitted Development Branch, 901 North 5th INFORMATION section of the direct final electronically, or through hand Street, Kansas City, Kansas 66101. rule for this action. First, EPA is delivery/courier. Please follow the Comments may also be submitted proposing to approve revisions to the detailed instructions described in the electronically or through hand delivery/ Edmonson County portion of the State direct final rule, ADDRESSES section, courier; please follow the detailed Implementation Plan (SIP) submitted by which is published in the rules section instructions in the ADDRESSES section of the Commonwealth of Kentucky, in of this Federal Register. the direct final rule which is located in the rules section of this Federal draft form, on February 19, 2004, and in FOR FURTHER INFORMATION CONTACT: Register. final form on August 24, 2004. The Rosymar De La Torre Colo´n, Regulatory August 24, 2004, SIP revision provides Development Section, Air Planning FOR FURTHER INFORMATION CONTACT: the 10-year update to the original 1-hour Branch, Air, Pesticides and Toxics Leland Daniels at (913) 551–7651, or by ozone maintenance plans for three 1- Management Division, U.S. e-mail at [email protected]. hour ozone maintenance areas, Environmental Protection Agency, SUPPLEMENTARY INFORMATION: In the including the Edmonson County Region 4, 61 Forsyth Street, SW., final rules section of the Federal Maintenance Area, and also provides Atlanta, Georgia 30303–8960, (404) 562– Register, EPA is approving the State’s revised 2004 motor vehicle emission 8965, [email protected], or submittal as a direct final rule without budgets (MVEBs) and establishes 2015 Lynorae Benjamin, Air Quality prior proposal because the Agency MVEBs. Through this action, EPA is Modeling and Transportation Section, views this as a noncontroversial providing notification of its Air Planning Branch, Air, Pesticides and revision amendment and anticipates no determination that the Edmonson Toxics Management Division, U.S. relevant adverse comments to this County portion of the Commonwealth’s Environmental Protection Agency, action. A detailed rationale for the SIP revision satisfies the requirement of Region 4, 61 Forsyth Street, SW., approval is set forth in the direct final the Clean Air Act (CAA) as amended in Atlanta, Georgia 30303–8960, (404) 562– rule. If no relevant adverse comments 1990 for the 10-year update of the 1- 9040, [email protected]. are received in response to this action, hour ozone maintenance plan for SUPPLEMENTARY INFORMATION: For no further activity is contemplated in Edmonson County Maintenance Area. additional information see the direct relation to this action. If EPA receives Secondly, EPA is providing information final rule which is published in the relevant adverse comments, the direct on the status of its transportation rules section of this Federal Register. final rule will be withdrawn and all conformity adequacy determination for public comments received will be Dated: November 29, 2004. the new MVEBs for the year 2015 that addressed in a subsequent final rule are contained in the 10-year update to A. Stanley Meiburg, based on this proposed action. EPA will the 1-hour ozone maintenance plan for Acting Regional Administrator, Region 4. not institute a second comment period the Edmonson County Area. In today’s [FR Doc. 04–27657 Filed 12–16–04; 8:45 am] on this action. Any parties interested in action, EPA is only addressing the BILLING CODE 6560–50–P commenting on this action should do so portion of the SIP revision for at this time. Please note that if EPA Edmonson County. EPA will take receives adverse comment on part of separate action to address the other ENVIRONMENTAL PROTECTION this rule and if that part can be severed portions of the SIP revision. AGENCY from the remainder of the rule, EPA may In the final rules section of this adopt as final those parts of the rule that 40 CFR Parts 52 and 70 Federal Register, the EPA is approving are not the subject of an adverse the State’s SIP revision as a direct final comment. For additional information, [R07–OAR–2004–MO–0004; FRL–7850–2] rule without prior proposal because the see the direct final rule which is located Agency views this as a noncontroversial Approval and Promulgation of in the rules section of this Federal submittal and anticipates no adverse Register. comments. A detailed rationale for the Implementation Plans and Operating approval is set forth in the direct final Permits Program; State of Missouri Dated: December 6, 2004. William W. Rice, rule. If no significant, material, and AGENCY: Environmental Protection adverse comments are received in Agency (EPA). Acting Regional Administrator, Region 7. response to this rule, no further activity [FR Doc. 04–27662 Filed 12–16–04; 8:45 am] ACTION: Proposed rule. is contemplated. If EPA receives adverse BILLING CODE 6560–50–P
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ENVIRONMENTAL PROTECTION I. General Information to the ANPR, please refer to the discussion in Unit IV. of that document AGENCY A. Does this Action Apply to Me? (69 FR 65565). 40 CFR Part 720 The Agency included in the ANPR a list of those who may be potentially List of Subjects in 40 CFR Part 720 affected by this action. If you have [OPPT–2003–0058; FRL–7692–3] Environmental protection, Chemicals, questions regarding the applicability of Hazardous substances, Reporting, and this action to a particular entity, consult RIN 2070–AJ04 recordkeeping requirements. the person listed under the FOR FURTHER TSCA Inventory Nomenclature for INFORMATION CONTACT. Dated: December 13, 2004. Enzymes and Proteins; Extension of B. How Can I Access Electronic Copies Susan B. Hazen, Comment Period of this Document and Other Related Acting Assistant Administrator, Office of Information Prevention, Pesticides and Toxic Substances. AGENCY: Environmental Protection [FR Doc. 04–27642 Filed 12–14–04; 3:04 pm] Agency (EPA). In addition to using EDOCKET (http:/ /www.epa.gov/edocket/), you may BILLING CODE 6560–50–S ACTION: Advance Notice of Proposed access this Federal Register document Rulemaking (ANPR); extension of electronically through the EPA Internet comment period. under the ‘‘Federal Register’’ listings at DEPARTMENT OF HOMELAND http://www.epa.gov/fedrgstr/. A SECURITY SUMMARY: This document extends the frequently updated electronic version of public comment period established for 40 CFR part 720 is available on E-CFR Federal Emergency Management the ANPR in the Federal Register issued Beta Site Two at Agency on November 15, 2004 (69 FR 65565). In http://www.gpoaccess.gov/ecfr/. that ANPR, EPA alerted stakeholders II. What Action is EPA taking? 44 CFR Part 67 that it was considering changing procedures and requirements for This document extends the public [Docket No. FEMA–D–7608] naming enzymes and proteins for the comment period established in the purpose of listing those substances on Federal Register issued on November Proposed Flood Elevation the TSCA Inventory. More specifically, 15, 2004 (69 FR 65565) (FRL–7342–2). Determinations the ANPR outlined four identification In that document, EPA alerted elements that EPA currently believes are stakeholders that it was considering AGENCY: Federal Emergency appropriate for use in developing changing procedures and requirements Management Agency (FEMA), unique TSCA Inventory nomenclature for naming enzymes and proteins for the Emergency Preparedness and Response for proteinaceous enzymes. The ANPR purpose of listing those substances on Directorate, Department of Homeland also solicited public comment on the TSCA Inventory. EPA is hereby Security. several specific questions relating to the extending the comment period, which ACTION: Proposed rule. initiative. was set to end on December 15, 2004, to January 30, 2005. SUMMARY: Technical information or DATES: Comments, identified by docket comments are requested on the identification (ID) number OPPT–2003– III. What is the Agency’s Authority for proposed Base (1% annual chance) 0058, must be received on or before Taking this Action? Flood Elevations (BFEs) and proposed January 30, 2005. Section 8(b) of TSCA requires EPA to BFE modifications for the communities listed below. The BFEs are the basis for ADDRESSES: Follow the detailed ‘‘compile, keep current, and publish a the floodplain management measures instructions as provided under list of each chemical substance which is that the community is required either to ADDRESSES in the Federal Register manufactured or processed in the adopt or to show evidence of being document of November 15, 2004. United States’’ (the TSCA Inventory). In order to fulfill this requirement, EPA already in effect in order to qualify or FOR FURTHER INFORMATION CONTACT: For must continuously update and keep remain qualified for participation in the general information contact: Colby current various types of information, National Flood Insurance Program Lintner, Regulatory Coordinator, including, but not limited to, the (NFIP). Environmental Assistance Division information used to identify any new DATES: The comment period is ninety (7408M), Office of Pollution Prevention chemical substance that is reported to (90) days following the second and Toxics, Environmental Protection be manufactured or processed in the publication of this proposed rule in a Agency, 1200 Pennsylvania Ave., NW., United States. EPA must also make newspaper of local circulation in each Washington, DC 20460–0001; telephone corrections, when necessary, of community. number: (202) 554–1404; e-mail address: previously reported information on the [email protected]. TSCA Inventory. ADDRESSES: The proposed BFEs for each community are available for inspection For technical information contact: IV. Do Any Statutory and Executive at the office of the Chief Executive James Alwood, Chemical Control Order Reviews Apply to this Action? Officer of each community. The Division, (7405M), Office of Pollution respective addresses are listed in the Prevention and Toxics, Environmental No. This action is not a rulemaking, table below. Protection Agency, 1200 Pennsylvania it merely extends the date by which Ave., NW., Washington, DC 20460– public comments must be submitted to FOR FURTHER INFORMATION CONTACT: 0001; telephone number: (202) 564– EPA for an ANPR that previously Doug Bellomo, P.E., Hazard 8974; e-mail address: published in the Federal Register of Identification Section, Emergency [email protected]. November 15, 2004 (69 FR 65565). For Preparedness and Response Directorate, information about the applicability of FEMA, 500 C Street SW., Washington, SUPPLEMENTARY INFORMATION: the regulatory assessment requirements DC 20472, (202) 646–2903.
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SUPPLEMENTARY INFORMATION: FEMA National Environmental Policy Act. Executive Order 12612, Federalism, proposes to make determinations of This proposed rule is categorically dated October 26, 1987. BFEs and modified BFEs for each excluded from the requirements of 44 Executive Order 12778, Civil Justice community listed below, in accordance CFR part 10, Environmental Reform. This proposed rule meets the with Section 110 of the Flood Disaster Consideration. No environmental applicable standards of Section 2(b)(2) Protection Act of 1973, 42 U.S.C. 4104, impact assessment has been prepared. of Executive Order 12778. and 44 CFR 67.4(a). Regulatory Flexibility Act. The These proposed base flood and Mitigation Division Director of the List of Subjects in 44 CFR Part 67 modified BFEs, together with the Emergency Preparedness and Response floodplain management criteria required Directorate certifies that this proposed Administrative practice and by 44 CFR 60.3, are the minimum that rule is exempt from the requirements of procedure, flood insurance, reporting are required. They should not be the Regulatory Flexibility Act because and recordkeeping requirements. construed to mean that the community proposed or modified BFEs are required Accordingly, 44 CFR part 67 is must change any existing ordinances by the Flood Disaster Protection Act of proposed to be amended as follows: that are more stringent in their 1973, 42 U.S.C. 4105, and are required floodplain management requirements. to establish and maintain community PART 67—[AMENDED] The community may at any time enact eligibility in the NFIP. As a result, a stricter requirements of its own, or regulatory flexibility analysis has not 1. The authority citation for part 67 pursuant to policies established by other been prepared. continues to read as follows: Federal, State or regional entities. These Regulatory Classification. This Authority: 42 U.S.C. 4001 et seq.; proposed elevations are used to meet proposed rule is not a significant Reorganization Plan No. 3 of 1978, 3 CFR, the floodplain management regulatory action under the criteria of 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, requirements of the NFIP and are also Section 3(f) of Executive Order 12866 of 3 CFR, 1979 Comp., p. 376. used to calculate the appropriate flood September 30, 1993, Regulatory § 67.4 [Amended] insurance premium rates for new Planning and Review, 58 FR 51735. buildings built after these elevations are Executive Order 12612, Federalism. 2. The tables published under the made final, and for the contents in these This proposed rule involves no policies authority of § 67.4 are proposed to be buildings. that have federalism implications under amended as follows:
# Depth in feet above ground. *Elevation in feet (NGVD). Source of flooding Location • Elevation in feet Communities affected (NACD). Existing Modified
NORTH CAROLINA Onslow County
Atlantic Ocean ...... At intersection of Chadwick Access Road and •6 •8 Onslow County (Unincorporated Areas). Carroll Street. Approximately 1,500 feet northeast of the •10 •11 intersection of Canal Street and 1st Street. Atlantic Ocean ...... Approximately 0.55 mile north of the intersec- •11 •8 Town of North Topsail Beach. tion of 2nd Avenue and Highway 210. At intersection of Heron Cam Court and High- •11 •12 way 210. Back Swamp ...... At Duplin/County boundary ...... None •57 Onslow County (Unincorporated Areas). Approximately 0.7 mile upstream of Dell None •90 Brock Road. Back Swamp ...... At confluence with Back Swamp ...... None •58 Onslow County (Unincorporated Areas). Tributary 1 ...... Approximately 0.8 mile upstream of Futrell None •85 Road. Back Swamp ...... At confluence with Back Swamp ...... None •60 Onslow County (Unincorporated Areas). Tributary 3 ...... Approximately 2.2 miles upstream of the con- None •85 fluence with Back Swamp. Back Swamp ...... At confluence with Back Swamp ...... None •66 Onslow County (Unincorporated Areas). Tributary 6 ...... Approximately 1.4 miles upstream of the con- None •81 fluence with Back Swamp. Back Swamp ...... At confluence with Back Swamp ...... None •66 Onslow County (Unincorporated Areas). Tributary 7 ...... Approximately 1.3 miles upstream of the con- None •79 fluence with Back Swamp. Back Swamp ...... At confluence with Back Swamp ...... None •70 Onslow County (Unincorporated Areas). Tributary 8 ...... Approximately 0.8 mile upstream of the con- None •79 fluence with Back Swamp. Back Swamp ...... At confluence with Back Swamp ...... None •71 Onslow County (Unincorporated Areas). Tributary 9...... Approximately 250 feet upstream of Haw None •82 Branch Road. Back Swamp ...... At confluence with Back Swamp ...... None •78 Onslow County (Unincorporated Areas). Tributary 10 ...... Approximately 0.9 mile upstream of the con- None •89 fluence with Back Swamp. Back Swamp ...... At confluence with Back Swamp ...... None •81 Onslow County (Unincorporated Areas).
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# Depth in feet above ground. *Elevation in feet (NGVD). Source of flooding Location • Elevation in feet Communities affected (NACD). Existing Modified
Tributary 11 ...... Approximately 0.5 mile upstream of the con- None •85 fluence with Back Swamp. Big Shakey Swamp ...... At confluence with Juniper Swamp ...... None •43 Onslow County (Unincorporated Areas). Approximately 2.1 miles upstream of the con- None •50 fluence with Juniper Swamp. Cypress Branch ...... At the Onslow/Pender County boundary ...... •6 •8 Town of Holly Ridge, Onslow County (Unin- corporated Areas). Approximately 1.2 miles upstream of the None •34 Bishop Road. Flat Swamp ...... At confluence with Juniper Swamp ...... None •37 Town of Holly Ridge, Onslow County (Unin- corporated Areas). Approximately 2.3 miles upstream of Preston None •61 Wells Road. Holly Shelter Creek ...... At the Onslow/Pender County boundary ...... None •36 Onslow County (Unincorporated Areas). Approximately 0.2 mile downstream of Hardy None •62 Graham Road. Juniper Swamp ...... At the Onslow/Pender County boundary ...... None •35 Onslow County (Unincorporated Areas). Approximately 4.7 miles upstream of State None •55 Highway 50. Juniper Swamp ...... At the confluence with Juniper Swamp ...... None •37 Onslow County (Unincorporated Areas). Tributary 1 ...... Approximately 350 Areas) feet upstream of None •43 U.S. Highway 50. Juniper Swamp ...... At the confluence with Juniper Swamp ...... None •44 Onslow County (Unincorporated Areas). Tributary 2 ...... Approximately 1.6 miles upstream of the con- None •59 fluence with Juniper Swamp. Kings Creek ...... At the confluence with Kings Creek ...... •6 •8 Onslow County (Unincorporated Areas). Tributary 1 ...... Approximately 2.1 miles upstream of Holly None •57 Ridge-Sneads Ferry Road. Moores Creek ...... At the Onslow/Pender County boundary ...... None •43 Onslow County (Unincorporated Areas). Approximately 1.6 miles upstream of None •66 Andemora Road. Moores Creek ...... At the Onslow/Pender County boundary ...... None •51 Onslow County (Unincorporated Areas). Tributary 1 ...... Approximately 1.0 mile upstream of Toma- None •78 hawk Road. Moores Creek ...... At the ONslow/Pender County boundary ...... None •47 Onslow County (Unincorporated Areas). Tributary 2 ...... Approximately 570 feet upstream of NC High- None •56 way 53. Moores Creek ...... At the confluence with Moores Creek ...... None •44 Onslow County (Unincorporated Areas). Tributary 3 ...... Approximately 1.2 miles upstream of the con- None •62 fluence with Moores Creek. Moores Creek ...... At the confluence with Moores Creek ...... None •46 Onslow County (Unincorporated Areas). Tributary 4 ...... Approximately 385 Areas) feet upstream of None •69 NC Highway 53. Moores Creek ...... At the confluence with Moores Creek Tribu- None •52 Onslow County (Unincorporated Areas). tary 4. Tributary 5...... Approximately 0.7 mile upstream of None •70 Andemora Road. Ninemile Creek ...... At the Duplin/Onslow County boundary ...... None •54 Onslow County (Unincorporated Areas). Approximately 0.2 mile downstream of Davis None •76 Road. Sandy Run Swamp ...... At the Onslow/Pender County boundary ...... None •29 Onslow County (Unincorporated Areas). Approximately 0.9 mile upstream of Haws None •45 Run Road. Sandy Run Swamp ...... At the confluence with Sandy Run Swamp .... None •41 Onslow County (Unincorporated Areas). Tributary 1 ...... Approximately 1.5 miles upstream of the con- None •45 fluence with Sandy Run Swamp. Shelter Swamp Creek .. At the Onslow/Pender County boundary ...... None •34 Onslow County (Unincorporated Areas). Approximately 3.2 miles upstream of South None •56 Coston Road. Shelter Swamp Creek .. At the confluence of Shelter Swamp ...... None •41 Onslow County (Unincorporated Areas). Tributary 1 ...... Approximately 0.8 mile upstream of the con- None •41 fluence with Shelter Swamp Creek. Stump Sound within the Approximately 0.23 mile south of the inter- •6 •8 Onslow County (Unincorporated Areas). Cape Fear River section of Morris Landing Road and Basin. Hardison Road. Along the shoreline at Thomas Landing (at •8 •11 the mouth of Turkey Creek). Tenmile Swamp ...... At the confluence with Ninemile Creek ...... None •55 Onslow County (Unincorporated Areas).
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# Depth in feet above ground. *Elevation in feet (NGVD). Source of flooding Location • Elevation in feet Communities affected (NACD). Existing Modified
Approximately 1.3 miles upstream of Swinson None •74 Road.
Town of Holly Ridge Maps available for inspection at the Holly Ridge Town Hall, 212 Dyson Street, Holly Ridge, North Carolina. Send comments to The Honorable Elmer Padgett, Mayor of the Town of Holly Ridge, P.O. Box 145, Holly Ridge, North Carolina 28445. Town of North Topsail Beach Maps available for inspection at the North Topsail Beach Town Hall, 2008 Loggerhead Court, North Topsail Beach, North Carolina. Send comments to The Honorable Rodney Knowles, Mayor of the Town of North Topsail Beach, 2008 Loggerhead Court, North Topsail Beach, North Carolina 28460. Onslow County (Unincorporated Areas) Maps available for inspection at the Onslow County Floodplain Administration, 604 College Street, Jacksonville, North Carolina. Send comments to Mr. Ronald Lewis, Onslow County Manager, 118 Old Bridge Street, Jacksonville, North Carolina 28540–4259.
(Catalog of Federal Domestic Assistance No. newspaper of local circulation in each CFR part 10, Environmental 83.100, ‘‘Flood Insurance.’’) community. Consideration. No environmental December 8, 2004. impact assessment has been prepared. ADDRESSES: The proposed BFEs for each Regulatory Flexibility Act. The David I. Maurstad, community are available for inspection Mitigation Division Director of the Acting Director, Mitigation Division, at the office of the Chief Executive Emergency Preparedness and Response Emergency Preparedness and Response Officer of each community. The Directorate. Directorate certifies that this proposed respective addresses are listed in the rule is exempt from the requirements of [FR Doc. 04–27622 Filed 12–16–04; 8:45 am] table below. BILLING CODE 9110–12–P the Regulatory Flexibility Act because FOR FURTHER INFORMATION CONTACT: proposed or modified BFEs are required Doug Bellomo, P.E., Hazard by the Flood Disaster Protection Act of DEPARTMENT OF HOMELAND Identification Section, Emergency 1973, 42 U.S.C. 4104, and are required SECURITY Preparedness and Response Directorate, to establish and maintain community FEMA, 500 C Street, SW., Washington, eligibility in the NFIP. As a result, a Federal Emergency Management DC 20472, (202) 646–2903. regulatory flexibility analysis has not Agency SUPPLEMENTARY INFORMATION: FEMA been prepared. proposes to make determinations of Regulatory Classification. This 44 CFR Part 67 BFEs and modified BFEs for each proposed rule is not a significant [Docket No. FEMA–D–7610] community listed below, in accordance regulatory action under the criteria of with section 110 of the Flood Disaster section 3(f) of Executive Order 12866 of Proposed Flood Elevation Protection Act of 1973, 42 U.S.C. 4104, September 30, 1993, Regulatory Determinations and 44 CFR 67.4(a). Planning and Review, 58 FR 51735. These proposed base flood and Executive Order 12612, Federalism. AGENCY: Federal Emergency modified BFEs, together with the This proposed rule involves no policies Management Agency (FEMA), floodplain management criteria required that have federalism implications under Emergency Preparedness and Response by 44 CFR 60.3, are the minimum that Executive Order 12612, Federalism, Directorate, Department of Homeland are required. They should not be dated October 26, 1987. Security. construed to mean that the community Executive Order 12778, Civil Justice ACTION: Proposed rule. must change any existing ordinances Reform. This proposed rule meets the that are more stringent in their applicable standards of section 2(b)(2) of SUMMARY: Technical information or floodplain management requirements. Executive Order 12778. comments are requested on the The community may at any time enact List of Subjects in 44 CFR Part 67 proposed Base (1% annual chance) stricter requirements of its own, or Flood Elevations (BFEs) and proposed pursuant to policies established by other Administrative practice and BFE modifications for the communities Federal, State or regional entities. These procedure, Flood insurance, Reporting listed below. The BFEs are the basis for proposed elevations are used to meet and recordkeeping requirements. the floodplain management measures the floodplain management Accordingly, 44 CFR part 67 is that the community is required either to requirements of the NFIP and are also proposed to be amended as follows: adopt or to show evidence of being used to calculate the appropriate flood PART 67—[AMENDED] already in effect in order to qualify or insurance premium rates for new remain qualified for participation in the buildings built after these elevations are 1. The authority citation for part 67 National Flood Insurance Program made final, and for the contents in these continues to read as follows: (NFIP). buildings. Authority: 42 U.S.C. 4001 et seq.; DATES: The comment period is ninety National Environmental Policy Act. Reorganization Plan No. 3 of 1978, 3 CFR, (90) days following the second This proposed rule is categorically 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, publication of this proposed rule in a excluded from the requirements of 44 3 CFR, 1979 Comp., p. 376.
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§ 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
#Depth in feet above ground. *Elevation in feet (NGVD) State City/town/county Source of flooding Location • Elevation in feet (NAVD) Existing Modified
Vermont ...... Hinesburg (Town), LaPlatte River ...... At the downstream corporate limit ...... None •319 Chittenden County. Approximately 100 feet upstream of Silver None •328 Street. Patrick Brook ...... At the confluence with LaPlatte River ...... None •325 Approximately 50 feet upstream of the diver- None •362 gence of The Canal. The Canal ...... At the dam downstream of State Route 116 None •346 At the divergence from Patrick Brook ...... None •361 Unnamed ...... At the confluence with Patrick Brook ...... None •335 Diversion Channel ..... At the divergence from The Canal ...... None •347 Maps available for inspection at the Hinesburg Town Hall, 10632 Route 116, Hinesburg, Vermont. Send comments to Mr. Lynn Gardner, Chairman of the Town of Hinesburg Board of Selectmen, Hinesburg Town Hall, 10632 Route 116, Hinesburg, Vermont 05461.
Vermont ...... Stowe (Town), East Branch Little At confluence with Little River ...... •704 •700 Lamoille County. River. At the confluence of Moss Glen and Sterling •725 •723 Brooks. Little River ...... Approximately 1,240 feet downstream of •624 •620 Adams Dam. At the confluence of East and West •704 •700 Branches of Little River. Moss Glen Brook...... At the confluence with East Branch Little •725 •723 River. Approximately 60 feet upstream of Pucker None •742 Street (State Route 100). Sterling Brook ...... At the confluence with East Branch Little •725 •723 River. Approximately 115 feet upstream of Moulton •756 •752 Lane. West Branch Little At the confluence with Little River ...... •704 •700 River. Approximately 75 feet upstream of Mountain •959 •956 Road (State Route 108). Maps available for inspection at the Stowe Town Hall, 67 Main Street, Stowe Vermont. Send comments to Mr. Richard C. Marron, Chairman of the Town of Stowe Board of Selectmen, Stowe Town Hall, 67 Main Street, Stowe, Vermont 05672.
Vermont ...... West Rutland (Town), Clark Hill Brook ...... At the confluence with Clarendon River ...... None •497 Rutland County. Approximately 0.54 mile upstream of None •691 Casella Lane. Urban Lateral ...... At the confluence with Castleton River ...... None •484 Approximately 0.24 mile upstream of None •492 Millyard Culvert. Maps available for inspection at the West Rutland Town Hall, 35 Marble Street, West Rutland, Vermont. Send comments to Mr. Edward Gilman, Chairman of the Town of West Rutland Board of Selectmen, West Rutland Town Hall, 35 Marble Street, West Rutland, Vermont 05777.
(Catalog of Federal Domestic Assistance No. Dated: December 8, 2004. 83.100, ‘‘Flood Insurance.’’) David I. Maurstad, Acting Director, Mitigation Division, Emergency Preparedness and Response Directorate. [FR Doc. 04–27621 Filed 12–16–04; 8:45 am] BILLING CODE 9110–12–P
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Notices Federal Register Vol. 69, No. 242
Friday, December 17, 2004
This section of the FEDERAL REGISTER www.nal.usda.gov/foodstamp/ resource Dated: December 1, 2004. contains documents other than rules or system has developed an on-line recipe Edward B. Knipling, proposed rules that are applicable to the database, the Recipe Finder, as an added Administrator, Agricultural Research Service. public. Notices of hearings and investigations, feature to the FSNC Web site to be [FR Doc. 04–27599 Filed 12–16–04; 8:45 am] committee meetings, agency decisions and launched early in Fiscal Year 2005. The rulings, delegations of authority, filing of BILLING CODE 3410–03–P petitions and applications and agency purpose of the recipe database is to statements of organization and functions are provide Food Stamp Program nutrition examples of documents appearing in this educators with low-cost, easy to DEPARTMENT OF AGRICULTURE section. prepare, healthy recipes for classes and demonstrations with Food Stamp Agricultural Research Service Program participants. We rely on these DEPARTMENT OF AGRICULTURE same educators to submit their best National Agricultural Library; Notice of recipes to us for review, analysis and Intent To Seek Approval To Collect Agricultural Research Service posting in the database. Data collected Information using this form will help identify a National Agricultural Library; Notice of AGENCY: USDA, Agricultural Research person’s eligibility to submit materials Service, National Agricultural Library. Intent To Seek Approval To Collect for this database. The proposed Information ACTION: Notice and request for voluntary ‘‘FSNC Recipe Submission comments. AGENCY: USDA, Agricultural Research Form’’ would allow nutrition education Service, National Agricultural Library. providers to submit recipes on-line and SUMMARY: In accordance with the ACTION: Notice and request for save time and money photocopying and Paperwork Reduction Act of 1995 (Pub. comments. mailing recipes. This will provide a fast L. 104–13) and Office of Management and accurate vehicle for us to and Budget (OMB) regulations at 5 CFR SUMMARY: In accordance with the communicate and inform others of the part 1320 (60 FR 44978, August 29, Paperwork Reduction Act of 1995 (Pub. recipes that target low-income 1995), this notice announces the L. 104–13) and Office of Management Americans. National Agricultural Library’s intent to and Budget (OMB) regulations at 5 CFR Estimate of Burden: Public reporting request approval for new information Part 1320 (60 FR 44978, August 29, burden for this collection of information collection relating to a nutrition 1995), this notice announces the is estimated to average 7.5 minutes per education material targeting low-income National Agricultural Library’s intent to response. persons. This voluntary form gives Food request approval for a new information Respondents: Food Stamp nutrition Stamp nutrition education providers the collection relating to existing nutrition education providers. opportunity to provide valuable education materials (i.e. recipes and Estimated Number of Respondents: feedback on this resource. cookbooks) targeting low-income 100 per year. DATES: Comments on this notice must be persons. This voluntary form gives Food Estimated Total Annual Burden on received by February 22, 2005 to be Stamp nutrition education providers the Respondents: 12.5 hrs. assured of consideration. opportunity to share resources that they Comments ADDRESSES: Address all comments have developed or used. concerning this notice to Shannon Fries, DATES: Comments on this notice must be Comments are invited on (a) whether Technical Information Specialist, Food received by February 22, 2005 to be the proposed collection of information and Nutrition Information Center, assured of consideration. is necessary for the proper performance National Agricultural Library, 10301 ADDRESSES: Address all comments for the functions of the agency, Baltimore Avenue, Beltsville, MD, concerning this notice to Shannon Fries, including whether the information will 20705–2351, telephone (301) 504–5368 Technical Information Specialist, Food have practical utility; (b) the accuracy of or fax (301) 504–6409. Submit electronic and Nutrition Information Center, the agency’s estimate of the burden of comments to [email protected] National Agricultural Library, 10301 the proposed collection of information, SUPPLEMENTARY INFORMATION: Baltimore Avenue, Beltsville, MD, including the validity of the Title: Food Stamp Nutrition 20705–2351, telephone (301) 504–5368 methodology and the assumptions used; Connection Recipe Finder Pilot Test or fax (301) 504–6409. Submit electronic (c) ways to enhance the quality, utility, Form. comments to [email protected] and clarity of the information to be OMB Number: PRA#. SUPPLEMENTARY INFORMATION: collected; and (d) ways to minimize the Expiration Date: Three years from Title: Food Stamp Nutrition burden of the collection of information date of approval. Connection Recipe Submission Form. on those who respond, including the Type of Request: New data collection OMB Number: PRA#. use of appropriate automated, from Food Stamp nutrition education Expiration Date: Three years from electronic, mechanical, or other providers. date of approval. technology. Comments should be sent to Abstract: The National Agricultural Type of Request: New data collection the address in the preamble. All Library’s Food Stamp Nutrition from Food Stamp nutrition education responses to this notice will be Connection (FSNC) http:// providers. summarized and included in the request www.nal.usda.gov/foodstamp/ resource Abstract: The National Agricultural for Office of Management and Budget system has developed an on-line recipe Library’s Food Stamp Nutrition (OMB) approval. All comments will database, the Recipe Finder, as an added Connection (FSNC) http:// become a matter of public record. feature to the FSNC Web site to be
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launched in the Fiscal Year 2005. The (OMB) approval. All comments will provide our target audience, Food target audience this project is intended become a matter of public record. Stamp Program nutrition educators, for, Food Stamp Program nutrition Dated: December 1, 2004. with low-cost, easy to prepare, healthy educators, are located all across the Edward B. Knipling, recipes for classes and demonstrations Nation, making it very difficult and with Food Stamp Program participants. Administrator, Agricultural Research Service. costly to evaluate the tool in a face to [FR Doc. 04–27600 Filed 12–16–04; 8:45 am] We rely on these same educators to face setting. In order to use an submit their best recipes to us for BILLING CODE 3410–03–P evaluation tool that is cost-effective review, analysis and posting in the while reaching numerous volunteers in database. Data collected using this form our target audience, we propose to test DEPARTMENT OF AGRICULTURE will help identify the success or value the usability of this on-line feature with of the nutrition education and budgeting an easy to use, on-line testing form. Data National Agricultural Library tool with Food Stamp Program collected using this form will help participants. determine a person’s eligibility to test Notice of Intent To Seek Approval To The proposed voluntary ‘‘FSNC the usability of this tool. Collect Information Recipe Review Form’’ would allow The proposed voluntary ‘‘Recipe Food Stamp Program nutrition Finder Pilot Test Form’’ would allow AGENCY: USDA, Agricultural Research Service, National Agricultural Library. education providers the opportunity to Food Stamp Program nutrition review recipes on-line for the purposes education providers and USDA Food ACTION: Notice and request for comments. of ensuring that only high quality and Nutrition Service staff the information remain in the database. opportunity to practice using this new SUMMARY: In accordance with the Based on responses generated from this on-line tool and provide valuable form, FSNC staff will then be able to feedback on the usability of this new Paperwork Reduction Act of 1995 (Pub. L. 104–13) and Office of Management display recipes in priority order form feature to the Web site. Data collected highest rating to lowest. This will also using this form will help FSNC make and Budget (OMB) regulations at 5 CFR Part 1320 (60 FR 44978, August 29, provide an interactive component for revisions and improvements to develop educators to use on the FSNC Web site. a dynamic product that meets the needs 1995), this notice announces the of the target audience. The form will National Agricultural Library’s intent to Estimate of Burden: Public reporting collect data that will verify the person request approval for new information burden for this collection of information is in our target audience. The testing collection relating to nutrition is estimated to average 7 minutes per will be conducted over a period of time education materials (cookbooks and response. (approximately six months) and will not recipes) targeting low-income persons. Respondents: Food Stamp nutrition require long-term data collection. This voluntary form gives Food Stamp education providers nutrition education providers the Estimate of Burden: Public reporting opportunity to provide valuable Estimated Number of Respondents: burden for this collection of information feedback on resources that they have 150 per year. is estimated to average 30 minutes per used. Estimated Total Annual Burden on respondent. Respondents: 17.5 hrs. Respondents: Food Stamp nutrition DATES: Comments on this notice must be Comments: Comments are invited on education providers. received by February 22, 2005 to be assured of consideration. (a) Whether the proposed collection of Estimated Number of Respondents: 75 information is necessary for the proper ADDRESSES: Address all comments per year. performance for the functions of the concerning this notice to Shannon Fries, Estimated Total Annual Burden on agency, including whether the Technical Information Specialist, Food Respondents: 37.50 hrs. information will have practical utility; and Nutrition Information Center, (b) the accuracy of the agency’s estimate Comments National Agricultural Library, 10301 of the burden of the proposed collection Baltimore Avenue, Beltsville, MD, Comments are invited on (a) whether of information, including the validity of 20705–2351, telephone (301) 504–5368 the proposed collection of information the methodology and the assumptions or fax (301) 504–6409. Submit electronic is necessary for the proper performance used; (c) ways to enhance the quality, comments to [email protected]. for the functions of the agency, utility, and clarity of the information to including whether the information will SUPPLEMENTARY INFORMATION: Title: be collected; and (d) ways to minimize have practical utility; (b) the accuracy of Food Stamp Nutrition Connection the burden of the collection of the agency’s estimate of the burden of Recipe Review Form. information on those who respond, the proposed collection of information, OMB Number: PRA#. including the use of appropriate including the validity of the Expiration Date: Three years from automated, electronic, mechanical, or methodology and the assumptions used; date of approval. other technology. Comments should be (c) ways to enhance the quality, utility, Type of Request: New data collection sent to the address in the preamble. All and clarity of the information to be from Food Stamp nutrition education responses to this notice will be collected; and (d) ways to minimize the providers. summarized and included in the request burden of the collection of information Abstract: The National Agricultural for Office of Management and Budget on those who respond, including the Library’s Food Stamp Nutrition (OMB) approval. All comments will use of appropriate automated, Connection (FSNC) http:// become a matter of public record. electronic, mechanical, or other www.nal.usda.gov/foodstamp/ resource technology. Comments should be sent to system has developed an on-line recipe Dated: December 1, 2004. the address in the preamble. All database, the Recipe Finder, as an added Edward B. Knipling, responses to this notice will be feature to the FSNC Web site to be Administrator, Agricultural Research Service. summarized and included in the request launched in the Fiscal Year 2005. The [FR Doc. 04–27601 Filed 12–16–04; 8:45 am] for Office of Management and Budget purpose of the recipe database is to BILLING CODE 3410–03–P
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DEPARTMENT OF AGRICULTURE information is necessary for the proper SUPPLEMENTARY INFORMATION section for performance of the functions of the the purpose and need of the action. Farm Service Agency agency, including whether the DATES: The public comment period will information will have practical utility; be for 30 days from the date this notice Request for Revision and Extension of (b) the accuracy of the agency’s estimate is published in the Federal Register. a Currently Approved Information of burden, including the validity of the Comments and suggestions concerning Collection methodology and assumptions used; (c) the scope of the analysis should be AGENCY: Farm Service Agency, USDA. ways to enhance the quality, utility and submitted (postmarked) 30 days clarity of the information to be ACTION: Notice and request for following this publication to ensure comments. collected; (d) ways to minimize the timely consideration. The draft burden of the collection of information environmental impact statement is SUMMARY: In accordance with the on those who are to respond, including expected in the fall of 2005, and the Paperwork Reduction Act of 1995, this through the use of appropriate final environmental impact statement is notice announces the intent of the Farm automated, electronic, mechanical, or expected in the winter of 2006. Service Agency (FSA) to request other technological collection ADDRESSES: Submit written or e-mail renewal of the information collection techniques or other forms of information comments by: Mail-Tell City Windthrow currently approved and used in support technology. These comments should be 2004 Project, Attn: Mary Schoeppel, of the FSA Farm Loan Programs (FLP). sent to the Desk Officer for Agriculture, Tell City Ranger District, Tell City, IN This information collection has been Office of Information and Regulatory 47586 or e-mail revised for clarification in conjunction Affairs, Office of Management and [email protected]. Please with the request for extension of the Budget, Washington, DC 20503 and to note: when commenting by e-mail, be burden package. Sam Snyder, Senior Loan Officer, sure to list Tell City Windthrow 2004 DATES: Comments on this notice must be USDA, Farm Service Agency, Loan Project in the subject line and include received on or before February 15, 2005 Making Division, 1400 Independence a U.S. Postal Service address so we may to be assured consideration. Avenue, SW., STOP 0522, Washington, add you to our mailing list. DC 20250–0522. FOR FURTHER INFORMATION CONTACT: Sam FOR FURTHER INFORMATION CONTACT: Comments will be summarized and Snyder, USDA, Farm Service Agency, Mary J. Schoeppel, project team leader included in the request for Office of Loan Making Division, 1400 at 812–547–7051. See the address above Management and Budget approval of the Independence Avenue, SW., STOP under ADDRESSES. Copies of documents information collection. All comments 0522, Washington, DC 20250–0522; may be requested at the same address. will also become a matter of public Telephone (202) 720–0599; Electronic Another means of obtaining information record. mail: [email protected]. is to visit the Forest Web page at SUPPLEMENTARY INFORMATION Title: Form Signed in Washington, DC on December 9, http://www.fs.fed.us/r9/hoosier. 2004. FSA 440–32, Verification of Debts and SUPPLEMENTARY INFORMATION: James R. Little, Assets. Purpose and Need for Action OMB Control Number: 0560–0166. Administrator, Farm Service Agency. Expiration Date: June 30, 2005. [FR Doc. 04–27602 Filed 12–16–04; 8:45 am] The primary purpose of this project is Type of Request: Extension and BILLING CODE 3410–05–P to implement management direction Revision of a Currently Approved outlined in the Hoosier National Forest Information Collection. Land and Resource Management Plan Abstract: Form FSA 440–32 is DEPARTMENT OF AGRICULTURE while addressing site-specific needs and necessary to ensure the accuracy of opportunities to move the project from information obtained in connection Forest Service the existing condition towards the with applications for FSA direct loan desired condition. The following list Hoosier National Forest, IN; Tell City describes the ‘‘needs for action’’ for the assistance. It is used to verify debt Windthrow 2004 Project information provided by applicants in project to meet the purpose of order to determine their suitability for AGENCY: Forest Service, USDA. implementing Forest Plan direction. an Operating, Farm Ownership or ACTION: Notice of intent to prepare an —Action is needed to address safety Emergency loan. Additionally, it is used environmental impact statement. concerns along roads, trails, high use by FSA to verify debts and assets of areas, and property boundaries. borrowers requesting primary and SUMMARY: In accordance with the —The risk of a wildland fire has preservation loan servicing or debt National Environmental Policy Act, increased as a result of the wind settlement. notice is hereby given that the Forest thrown timber. Many areas have Estimate of Burden: Public reporting Service, Tell City Ranger District of the down timber on greater than 50% of burden for this collection of information Hoosier National Forest will prepare a the identified area. Therefore, there is is estimated to average 15 minutes per Draft Environmental Impact Statement a need to improve public safety by response. (EIS) to disclose the environmental reducing the potential for high- Respondents: Individual farmers, farm consequences of the proposed Tell City intensity fires to develop and spread. or other business entities and financial Windthrow 2004 Project. On July 13, This can be accomplished by institutions. 2004, a severe storm producing winds at changing the horizontal continuity of Estimated Number of Respondents: 70 to 80 miles per hour moved across fuels and reducing the amount of 24,031. southern Indiana. Heavy rain and high available fuel such as through Estimated Number of Responses Per winds altered the stand structure of the prescribed burning. Respondent: 3. forest with down and damaged trees. In —There is a need to salvage portions of Estimated Total Annual Burden on the EIS, the USDA Forest Service will the damaged area in a timely manner Respondents: 18,024. address the potential environmental to capture timber product values that Comments are invited on the impacts of salvage harvesting and would be lost due to insect damage following: (a) Whether the collection of prescribed burning. See the and decay with time.
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—Salvage operations and prescribed notice in the local newspaper. The National Environmental Policy Act at 40 burning would expedite the transition present solicitation is for comments on CFR 1503.3 in addressing these points. toward a more natural appearing this Notice of Intent and scoping Comments received, including the landscape and help promote oak- material available elsewhere, such as on names and addresses of those who hickory regeneration on the Forest, the Forest Web page. comment, will be considered part of the public record on this proposal and will thus encouraging diversity of species. Comment Requested —There is a need to provide timber to be available for public inspection. This notice of intent initiates the meet people’s demand for wood (Authority: 40 CFR 1501.7 and 1508.22; products such as furniture, paper, scoping process which guides the Forest Service Handbook 1909.15, Section fiber, and construction materials. The development of the environmental 21) impact statement. Forest Plan identifies areas suitable Dated: December 10, 2004. for timber production. Early Notice of Importance of Public Participation in Subsequent Kenneth G. Day, Proposed Action Environmental Review: A draft Forest Supervisor. The Forest proposes to salvage harvest environmental impact statement will be [FR Doc. 04–27591 Filed 12–16–04; 8:45 am] trees that are recently down or leaning, prepared for comment. The comment BILLING CODE 3410–11–P severely damaged, or identified as period on the draft environmental hazard trees throughout the project area. impact statement will be 45 days from Trees deemed hazardous are those that the date the Environmental Protection DEPARTMENT OF AGRICULTURE adversely affect public safety, including Agency publishes the notice of Grain Inspection, Packers and logging operations and management availability in the Federal Register. Stockyards Administration activities, facilities, and public visitors The Forest Service believes, at this early stage, it is important to give using the forest. Trees would be United States Standards for Beans retained to provide wildlife habitat and reviewers notice of several court rulings long-term snag recruitment. Salvage related to public participation in the AGENCY: Grain Inspection, Packers and activities would occur on approximately environmental review process. First, Stockyards Administration, USDA. 3,100 acres. reviewers of draft environmental impact ACTION: Notice with opportunity to This project proposes prescribed statements must structure their comment. burning. General activities to be participation in the environmental undertaken in preparing or executing review of the proposal so that it is SUMMARY: The Grain Inspection, Packers prescribed fires could include fire line meaningful and alerts an agency to the and Stockyards Administration (GIPSA) construction, hazard tree mitigation, reviewer’s position and contentions. is proposing to remove the special grade and mop-up. Where possible, roads, Vermont Yankee Nuclear Power Corp. v. designation ‘‘off-color’’ from the United trails, and streams would be used as NRDC, 435 U.S. 519, 553 (1978). Also, States Standards for Beans. GIPSA will natural breaks to minimize fire line environmental objections that could be continue to offer assessments for color construction. Any rehabilitation raised at the draft environmental impact uniformity on a request only basis. This measures for fire lines would be statement stage but that are not raised action will facilitate the marketing of determined by Forest Service until after completion of the final beans from many different regions. specialists. All proposed prescribed environmental impact statement may be DATES: Comments must be received by fires would have a prescribed fire plan waived or dismissed by the courts. City January 18, 2005. of Angoon v. Hodel, 803 F.2d 1016, prior to the burn. This activity would ADDRESSES: We invite you to submit occur on approximately 5,590 acres. 1022 (9th Cir. 1986) and Wisconsin comments on the proposed rule. You Road construction activities are Heritages, Inc. v. Harris, 490 F. Supp. may submit comments by any of the anticipated on approximately 27 miles 1334, 1338 (E.D. Wis. 1980). Because of following methods: to facilitate the removal of salvage these court rulings, it is very important • E-mail: Send comments via material and minimize resource damage. that those interested in this proposed electronic mail to This could include road reconstruction action participate by the close of the 45- [email protected]. and road maintenance on existing road day comment period so that substantive • Mail: Send hardcopy written corridors. Temporary roads may be built comments and objections are made comments to Tess Butler, GIPSA, USDA, to minimize resource damage and later available to the Forest Service at a time 1400 Independence Avenue, SW., Room decommissioned. when it can meaningfully consider them 1647–S, Washington, DC, 20250–3604. and respond to them in the final • Fax: Send comments by facsimile Responsible Official environmental impact statement. transmission to: (202) 690–2755. Kenneth G. Day, Forest Supervisor; To assist the Forest Service in • Hand Delivery or Courier: Deliver Hoosier National Forest; 811 identifying and considering issues and comments to: Tess Butler, GIPSA, Constitution Avenue; Bedford, Indiana concerns on the proposed action, USDA, 1400 Independence Avenue, 47421. comments on the draft environmental SW., Room 1647–S, Washington, DC, impact statement should be as specific 20250–3604. Nature of Decision To Be Made as possible. It is also helpful if All comments should make reference The decision to be made is whether comments refer to specific pages or to the date and page number of this the activities should proceed as chapters of the draft statement. issue of the Federal Register. proposed, proceed as modified by an Comments may also address the To read comments: All comments alternative or be deferred at this time. adequacy of the draft environmental received will be made available for impact statement or the merits of the public inspection at the above address Scoping Process alternatives formulated and discussed in during regular business hours (7 CFR The Hoosier National Forest proposes the statement. Reviewers may wish to 1.27(b)). to scope for information by contacting refer to the Council on Environmental The current United States Standards persons and organizations on the Quality Regulations for implementing for Beans are available by accessing Hoosier’s mailing list and publishing a the procedural provisions of the GIPSA’s Home Page on the Internet at:
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http://www.usda.gov/gipsa/reference- Beans grown in various regions may comment period will be made part of library/standards/stds.htm. vary greatly in general appearance. As the public record maintained by GIPSA, FOR FURTHER INFORMATION CONTACT: John beans mature and are ready for harvest, will be available to the public for Giler, Deputy Director, Field outside forces such as dew, rain, and review, and will be considered by Management Division, USDA, GIPSA, sunlight, can greatly affect the color of GIPSA before final action is taken on the Room 2429–S, Stop 3632, 1400 the beans. These same forces cause proposal. Independence Avenue, SW., beans in the same regions to vary in Authority: 7 U.S.C. 1621 et seq. Washington, DC, 20250–3632, telephone color from season to season. (202) 720–0252; or e-mail to: Further, beans of one class and variety Donna Reifschneider, [email protected]. grown in the Pacific Northwest may Administrator, Grain Inspection, Packers and have an entirely different color than the Stockyards Administration. SUPPLEMENTARY INFORMATION: Section same beans grown in the Midwest [FR Doc. 04–27626 Filed 12–16–04; 8:45 am] 203(c) of the Agricultural Marketing Act regions, yet both would be of good BILLING CODE 3410–EN–P of 1946, as amended, directs and natural color for their regions. For authorizes the Secretary of Agriculture example, the Colorado/Idaho grown ‘‘to develop and improve standards of pinto bean generally has a lighter seed COMMITTEE FOR PURCHASE FROM quality, condition, quantity, grade, and coat color than the pinto beans grown in packaging and recommend and PEOPLE WHO ARE BLIND OR North Dakota. Both color types appeal to SEVERELY DISABLED demonstrate such standards in order to consumers and are considered a ‘‘good encourage uniformity and consistency natural color.’’ Procurement List; Additions and in commercial practices * * *’’. GIPSA Further, there is no visual reference Deletions is committed to carrying out this for off-color, and, due to the many authority in a manner that facilitates the variances, attempts to develop a visual AGENCY: Committee for Purchase From marketing of agricultural commodities. reference have been difficult. This can People Who Are Blind or Severely The United States Standards for Beans make assessment for off-color Disabled. do not appear in the Code of Federal sometimes difficult. ACTION: Additions to and deletions from Regulations but are maintained by the The majority of suppliers know their Procurement List. U.S. Department of Agriculture. customer and their specific quality GIPSA is proposing to change the preferences. When asked to furnish a SUMMARY: This action adds to the United States Standards for Beans using light, uniformly colored bean, suppliers Procurement List products and a service the procedures that appear at 7 CFR generally know the implied color to be furnished by nonprofit agencies Section 868.102. GIPSA representatives parameters, for their respective areas, employing persons who are blind or work closely with the National Dry Bean that the customer is setting due to the have other severe disabilities, and Council (NDBC) and others in the bean supplier/buyer relationship. However, deletes from the Procurement List a industry to examine the effectiveness of when the supplier is not clear as to the product and services previously the U.S. Standards for Beans in today’s needs of the customers, they use ‘‘type furnished by such agencies. marketing environment. Through samples.’’ That is, the supplier forwards DATES: Effective Date: January 16, 2005. discussions, it appears that the current a sample representing the color and ADDRESSES: Committee for Purchase standards continue to meet consumer/ quality they have available to From People Who Are Blind or Severely processor needs. However, the bean prospective customers for examination Disabled, Jefferson Plaza 2, Suite 10800, industry has indicated the special grade and approval. If the color and quality 1421 Jefferson Davis Highway, ‘‘off-color’’ in dry beans is not needed are acceptable, comparable quality is Arlington, Virginia, 22202–3259. to market dry beans. shipped to the customer without FOR FURTHER INFORMATION CONTACT: The special grade designation ‘‘off- incident. Sheryl D. Kennerly, (703) 603–7740. color’’ has been in the U.S. Standards GIPSA recognizes that color is, at SUPPLEMENTARY INFORMATION: for Beans for many years. Because it is times, a concern to buyers. a special grade designation, it does not Consequently, GIPSA will provide, Additions affect the numerical grade designation. upon request, an analysis for color to On October 15, and October 22, 2004, The current written description for ‘‘off- determine if color is uniform or is the Committee for Purchase From color’’ is: ‘‘Beans that, after removal of representative of a ‘‘type’’ sample. When People Who Are Blind or Severely total defects, are distinctly off-color due a request for color analysis is made, a Disabled published notice (69 FR 61202 to age or other natural causes but are not statement will be added to the and 62020) of proposed additions to the materially weathered.’’ certificate in the ‘‘Remarks’’ section Procurement List. Off-color is determined on a stating whether the color is uniform, not After consideration of the material representative sample of approximately uniform, or meets the requirements of presented to it concerning capability of 500 grams after the removal of total the type sample. qualified nonprofit agencies to provide defects (i.e., splits, damaged beans, GIPSA is proposing to remove the the products and services and impact of contrasting classes, and foreign special grade designation ‘‘off-color’’ the additions on the current or most material). Beans are considered as ‘‘off- from the United States Standards for recent contractors, the Committee has color’’ if they are not of a good natural Beans. GIPSA will continue to offer determined that the products and color or are stained to an extent that assessments for color uniformity on a service listed below are suitable for they seriously affect the appearance of request only basis. This action will procurement by the Federal Government the lot. Beans that are discolored by facilitate the marketing of beans from under 41 U.S.C. 46–48c and 41 CFR 51– dust or a slight amount of dirt, which many different regions. 2.4. can be removed by processing methods, GIPSA will solicit comments for 30 are not considered as ‘‘off-color.’’ days. This comment period is Regulatory Flexibility Act Certification Bean color is dependent upon considered appropriate given the I certify that the following action will environmental conditions, varietal upcoming production season for beans. not have a significant impact on a differences, moisture, storage, and age. All comments received within the substantial number of small entities.
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The major factors considered for this services listed below are no longer COMMITTEE FOR PURCHASE FROM certification were: suitable for procurement by the Federal PEOPLE WHO ARE BLIND OR 1. The action will not result in any Government under 41 U.S.C. 46–48c SEVERELY DISABLED additional reporting, recordkeeping or and 41 CFR 51–2.4. other compliance requirements for small Procurement List; Proposed Additions entities other than the small Regulatory Flexibility Act Certification AGENCY: Committee for Purchase From organizations that will furnish the I certify that the following action will People Who Are Blind or Severely products and service to the Government. 2. The action will result in not have a significant impact on a Disabled. authorizing small entities to furnish the substantial number of small entities. ACTION: Proposed additions to products and service to the Government. The major factors considered for this Procurement List. 3. There are no known regulatory certification were: SUMMARY: The Committee is proposing alternatives which would accomplish 1. The action may result in additional to add to the Procurement List products the objectives of the Javits-Wagner- reporting, recordkeeping or other and services to be furnished by O’Day Act (41 U.S.C. 46–48c) in compliance requirements for small nonprofit agencies employing persons connection with the products and entities. who are blind or have other severe service proposed for addition to the disabilities. Procurement List. 2. The action may result in authorizing small entities to furnish the Comments Must be Received on or End of Certification product and services to the Government. Before: January 16, 2005. ADDRESSES: Committee for Purchase Accordingly, the following products 3. There are no known regulatory From People Who Are Blind or Severely and service are added to the alternatives which would accomplish Disabled, Jefferson Plaza 2, Suite 10800, Procurement List: the objectives of the Javits-Wagner- 1421 Jefferson Davis Highway, Products O’Day Act (41 U.S.C. 46–48c) in Arlington, Virginia, 22202–3259. connection with the product and Product/NSN: Cup, Drinking, Styrofoam, FOR FURTHER INFORMATION CONTACT: services deleted from the Procurement M.R. 537. Sheryl D. Kennerly, (703) 603–7740. NPA: The Oklahoma League for the Blind, List. Oklahoma City, Oklahoma. SUPPLEMENTARY INFORMATION: This Contracting Activity: Defense Commissary End of Certification notice is published pursuant to 41 Agency (DeCA), Fort Lee, Virginia. U.S.C. 47(a)(2) and 41 CFR 51–2.3. Its Product/NSN: Lightsticks (Chemlights) Accordingly, the following product purpose is to provide interested persons 6260–00–106–7478 (4″—Green) and services are deleted from the an opportunity to submit comments on 6260–01–230–8601 (6″—Red-HI) Procurement List: the proposed actions. If the Committee 6260–01–074–4229 (6″—Green) approves the proposed additions, the 6260–01–074–4230 (6″—Yellow-HI) Product ″ entities of the Federal Government 6260–01–178–5559 (6 —Red) identified in the notice for each product 6260–01–178–5560 (6″—Blue) Product/NSN: Paper, Looseleaf, Blank, 6260–01–195–9753 (6″—Orange) 7530–00–286–5782. and service will be required to procure the products and services listed below 6260–01–196–0136 (6″—Yellow) NPA: Alabama Industries for the Blind, ″ from nonprofit agencies employing 6260–01–218–5146 (6 —White) Talladega, Alabama. 6260–01–247–0362 (15″—Green) persons who are blind or have other 6260–01–247–0363 (6″—Orange/Ultra HI) Contracting Activity: Office Supplies & severe disabilities. 6260–01–247–0367 (15″—White) Paper Products Acquisition Center, 6260–01–247–0368 (6″—White-HI) New York, NY. Regulatory Flexibility Act Certification 6260–01–265–0612 (15″—Red) I certify that the following action will 6260–01–265–0613 (15″—Yellow) Services ″ not have a significant impact on a 6260–01–265–0614 (15 —Blue) substantial number of small entities. 6260–01–282–7630 (4″—Orange) Service Type/Location: Janitorial/ NPA: L.C. Industries For The Blind, Inc., Custodial, U.S. Federal Building The major factors considered for this certification were: Durham, North Carolina. and Post Office, 104 West Magnolia, 1. If approved, the action will not Contract Activity: Defense Supply Center Bellingham, Washington. Philadelphia, Philadelphia, result in any additional reporting, Pennsylvania. NPA: Cascade Christian Services, recordkeeping or other compliance Bellingham, Washington. requirements for small entities other Service than the small organizations that will Service Type/Location: Custodial Services, Contracting Activity: General Services Administration. furnish the products and services to the USDA, Laboratory Research Building, Government. 6301 W. 750 North, West Lafayette, Service Type/Location: Janitorial/ Indiana. 2. If approved, the action will result NPA: Wabash Center, Inc., Lafayette, Indiana. Custodial, U.S. Post Office and in authorizing small entities to furnish Contracting Activity: USDA, Agriculture Courthouse, Vicksburg, Mississippi. the products and services to the Research Service, Peoria, Illinois. NPA: Warren County Association for Government. 3. There are no known regulatory Deletions Retarded Citizens, Inc., Vicksburg, Mississippi. alternatives which would accomplish On October 22, 2004, the Committee the objectives of the Javits-Wagner- for Purchase From People Who Are Contracting Activity: General Services O’Day Act (41 U.S.C. 46–48c) in Blind or Severely Disabled published Administration. connection with the products and notice (69 FR 62020/21) of proposed Sheryl D. Kennerly, services proposed for addition to the deletions to the Procurement List. After Procurement List. Comments on this Director, Information Management. consideration of the relevant matter certification are invited. Commenters presented, the Committee has [FR Doc. 04–27658 Filed 12–16–04; 8:45 am] should identify the statement(s) determined that the product and BILLING CODE 6353–01–P underlying the certification on which
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they are providing additional provisions of the Paperwork Reduction This request is for a revision of a information. Act (44 U.S.C. chapter 35). currently approved collection and Agency: U.S. Census Bureau. covers the 2004 through 2006 End of Certification Title: Information and Information and Communication The following products and services Communication Technology Survey. Technology Survey. Major revisions are proposed for addition to Form Number(s): ICT–1(S), ICT–1(M), from the previous ICTS are the Procurement List for production by the ICT–1(Long). collection of capital expenditures data nonprofit agencies listed: Agency Approval Number: 0607– for the four types of ICT equipment and 0909. Products software cited below, and the Type of Request: Revision of a incorporation of the 2002 North Product/NSN: Mass Casualty First Aid currently approved collection. American Industry Classification Kit, USAF; 6545–01–525–9821— Burden: 79,903 hours. System (NAICS) into the ICTS. Capital Mass Casualty Bag; 6545–01–525– Number of Respondents: 46,000. expenditures data will only be collected Average Hours Per Response: ICT– 9847—Trauma Module; 6545–01– for computers and peripheral 525–9849—Minor Module; 6545– 1(S)—1 hour and 4 minutes, ICT–1(M)— equipment; ICT equipment, excluding 01–526–0062—Splint Module; 2 hours and 8 minutes, ICT–1(Long)—21 computers and peripherals; 6545–01–526–0065—CPR Module; hours. electromedical and electrotherapeutic Needs and Uses: A concern for 6545–01–526–0423—Mass Casualty apparatus; and, computer software, economic policymakers is the lack of First Aid Kit. including payroll associated with available data related to e-business NPA: Chautauqua County Chapter, software development. These infrastructure investment. Such data is NYSARC, Jamestown, New York. capitalized data will be collected Contracting Activity: U.S. Air Force— critical for evaluating productivity annually on the ICTS, except when AFMLO/USAF, Frederick, growth, changes in industrial capacity, collected in the ACES once every five Maryland. measures of economic performance, and years. Beginning with the 2004 ICTS, we Contracting Activity: Defense Supply current economic developments. Rapid will publish data based on the 2002 Center Philadelphia, Philadelphia, changes and advances in Information NAICS. We will collect and publish data Pennsylvania. and Communication Technology (ICT) for approximately 136 industries. This equipment have resulted in these assets Services is an increase of four industries from the having short useful lives and a tendency 1997 NAICS. Service Type/Location: Custodial to be replaced much quicker than other The plan for the continued survey is Services; Charles E. Bennett Federal types of equipment. Companies are to collect industry-level capital Building; 400 W. Bay Street, expensing the full cost of such assets expenditures and non-capitalized Jacksonville, Florida. during the current annual period rather expenses (purchases, and operating NPA: CCAR Services, Inc., Green Cove than capitalizing the value of such leases and rental payments) for the four Springs, Florida. assets and expensing the cost over two types of ICT equipment and software Contracting Activity: GSA, Property or more years. In some cases this is due mentioned above. This collection is Management Center (4PMB), to the short useful life of the asset, and intended to represent total business Atlanta, Georgia. in other cases this is because companies spending for ICT equipment by all Service Type/Location: Facilities have varying dollar levels for employer firms and provide Maintenance; Buckley Annex and capitalization. comprehensive control estimates for Building 667, Buckley AFB, The Annual Capital Expenditures each type of equipment and software by Colorado. Survey (ACES) (OMB Project 0607– industry. Companies that operate in NPA: Professional Contract Services, 0782) currently collects annual data on only one industry receive an ICT–1(S) Inc., Austin, Texas. business capital expenditures and form. These companies are not asked to Contracting Activity: 460th Air Base detailed types of structures and Wing, Buckley AFB, Colorado. report ICT expenditures by industry equipment data every five years. This which eliminates the need for Service Type/Location: Water Blasting; infrequent collection of types of Various U.S. Military Locations on respondent industry coding. Companies structures and equipment detail and the that operate in more than one but less Guam. fact that the ACES does not include NPA: Able Industries of the Pacific, than nine industries receive an ICT– non-capitalized expenditures for e- 1(M) form. And, companies that operate Tamuning, Guam. business infrastructure investment Contracting Activity: Officer in Charge in nine or more industries receive an creates serious data gaps. ICT–1(L) form. of Construction—FSSC, FPO AP, As a result, the Information and Guam. Affected Public: Business or other for- Communication Technology Survey profit, Not-for-profit institutions. Sheryl D. Kennerly, (ICTS) was developed as a supplement Frequency: Annually. Director, Information Management. to the ACES. For the ICTS, we use the Respondent’s Obligation: Mandatory. ACES sampling, follow-up and [FR Doc. 04–27659 Filed 12–16–04; 8:45 am] Legal Authority: Title 13 U.S.C., estimation methodologies including BILLING CODE 6353–01–P Sections 182, 224, and 225. mailing to the same employer OMB Desk Officer: Susan Schechter, companies as the ACES. This data (202) 395–5103. collection supplements the current Copies of the above information DEPARTMENT OF COMMERCE source of comprehensive statistics on collection proposal can be obtained by Submission for OMB Review; business investment in equipment and calling or writing Diana Hynek, Comment Request software for private nonfarm businesses Departmental Paperwork Clearance in the United States. The ICTS is an Officer, (202) 482–0266, Department of DOC has submitted to the Office of important part of the Federal Commerce, room 6625, 14th and Management and Budget (OMB) for Government statistical program to Constitution Avenue, NW., Washington, clearance the following proposal for improve and supplement ongoing DC 20230 (or via the Internet at collection of information under the statistical programs. [email protected]).
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Written comments and Major revisions from the previously Copies of the above information recommendations for the proposed approved collection are the elimination collection proposal can be obtained by information collection should be sent of the collection of detailed capital calling or writing Diana Hynek, within 30 days of publication of this expenditures by type of structure and Departmental Paperwork Clearance notice to Susan Schechter, OMB Desk type of equipment, and the Officer, (202) 482–0266, Department of Officer either by fax (202–395–7245) or incorporation of the 2002 North Commerce, room 6625, 14th and e-mail ([email protected]). American Industry Classification Constitution Avenue, NW., Washington, Dated: December 13, 2004. System (NAICS) into the ACES. Detailed DC 20230 (or via the Internet at capital expenditures by type of structure Madeleine Clayton, [email protected]). and type of equipment data were Written comments and Management Analyst, Office of the Chief collected in the 2003 ACES. These data, recommendations for the proposed Information Officer. collected together once every five years, information collection should be sent [FR Doc. 04–27585 Filed 12–16–04; 8:45 am] will not be requested again until the within 30 days of publication of this BILLING CODE 3510–07–P 2008 ACES. Beginning with the 2004 notice to Susan Schechter, OMB Desk ACES we will publish data by the 2002 Officer either by fax (202) 395–7245 or NAICS. We will collect and publish data e-mail ([email protected]). DEPARTMENT OF COMMERCE for approximately 136 industries. This Dated: December 13, 2004. is an increase of four industries from the Submission for OMB Review; Madeleine Clayton, Comment Request 1997 NAICS. The plan for the continued survey is Management Analyst, Office of the Chief DOC has submitted to the Office of a basic annual survey that collects fixed Information Officer. Management and Budget (OMB) for assets and depreciation, sales and [FR Doc. 04–27586 Filed 12–16–04; 8:45 am] clearance the following proposal for receipts, total capital expenditures for BILLING CODE 3510–07–P collection of information under the new and used structures and equipment provisions of the Paperwork Reduction separately, and capitalized computer Act (44 U.S.C. chapter 35). software developed or obtained for DEPARTMENT OF COMMERCE internal use, from employer enterprises. Agency: U.S. Census Bureau. International Trade Administration Title: Annual Capital Expenditures This collection is intended to represent Survey. the capital expenditure activity of all A–570–846 Form Number(s): ACE–1 (S), ACE–1 employer firms and provide (M), ACE–1(Long), ACE–1 (I), ACE–2, comprehensive control estimates of total Brake Rotors from the People’s ACE–2 (I). capital expenditures for structures and Republic of China: Notice of Initiation Agency Approval Number: 0607– equipment by industry. Companies that of Changed Circumstances Review 0782. operate in only one industry will AGENCY: Import Administration, Type of Request: Revision of a receive an ACE–1 (S) form. These International Trade Administration, currently approved collection. companies are not asked to report Department of Commerce. Burden: 132,900 hours. capital expenditures by industry which SUMMARY: Number of Respondents: 61,000. The Department of Commerce eliminates the need for respondent has received information sufficient to Avg Hours per Response: ACE–1 (S)— industry coding. Companies that operate 2 hours, ACE–1 (M)—3 hours, ACE–1 warrant initiation of a changed in more than one but less than nine circumstances review of the (Long)—16 hours, ACE–2—1 hour. industries will receive an ACE–1 (M) Needs and Uses: A major concern of antidumping order on brake rotors from form. And, companies that operate in the People’s Republic of China (‘‘PRC’’). economic policymakers is the adequacy nine or more industries will receive an of investment in plant and equipment. The review will be conducted to ACE–1 (L) form. determine whether Shandong Huanri Data on the amount of business All ACE–1 forms request sales and expenditures for new plant and Group Co., Ltd. (‘‘Huanri Group’’) is the receipts information to calculate successor–in-interest to Shandong equipment and measures of the stock of industry investment to sales ratios and existing facilities are critical to evaluate Huanri Group General Company to assist in verifying that consolidated (‘‘Huanri Group General’’). productivity growth, the ability of U.S. company data are being reported. Assets EFFECTIVE DATE: December 17, 2004. business to compete with foreign and depreciation information collected business, changes in industrial capacity, assists in measuring changes in the FOR FURTHER INFORMATION CONTACT: and measures of overall economic Nation’s capital stock estimates. As part Amber Musser, AD/CVD Operations, performance. The ACES is the current of the basic survey, we also collect data Office 9, Import Administration, source of comprehensive statistics on annually from a small sample of International Trade Administration, business investment in buildings and nonemployer enterprises. Using Form U.S. Department of Commerce, 14th other structures, machinery, and ACE–2, the survey will request that Street and Constitution Avenue, NW., equipment for private nonfarm nonemployer companies report current Washington, DC 20230; telephone: (202) businesses in the United States. The year capital expenditures data. This 482–1777. ACES is an integral part of the Federal collection is intended to better represent SUPPLEMENTARY INFORMATION: Government statistical program to total capital expenditures activity of all Background improve and supplement ongoing firms. statistical programs. Federal Affected Public: Business or other for- On April 17, 1997, the Department Government agencies, including the profit, Not-for-profit institutions. published in the Federal Register the Census Bureau, use the data to improve Frequency: Annually. antidumping duty order on brake rotors and supplement ongoing statistical Respondent’s Obligation: Mandatory. from the PRC (62 FR 18740). On October programs. Legal Authority: Title 13 U.S.C., 28, 2004, Huanri Group submitted This request is for a revision of a Sections 182, 224, and 225. information and documentation in currently approved collection and OMB Desk Officer: Susan Schechter, support of its claim that it is the covers the 2004 through 2006 ACES. (202) 395–5103. successor–in-interest to Huanri Group
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General and requested that the Toyota, and Volvo). Brake rotors establish sufficiently an absence of de Department conduct a changed– covered in this review are not certified jure control of stock companies circumstances review to determine by OEM producers of vehicles sold in including limited liability companies. whether Huanri Group is the successor– the United States. The scope also See, e.g., Final Determination of Sales at in-interest to Huanri Group General and includes composite brake rotors that are Less than Fair Value: Furfuryl Alcohol whether it should receive the same made of gray cast iron which contain a from the People’s Republic of China, 60 antidumping duty treatment as is steel plate but otherwise meet the above FR 22544 (May 8, 1995) (‘‘Furfuryl accorded to Huanri Group General with criteria. Excluded from the scope of the Alcohol’’), and Preliminary respect to the subject merchandise. review are brake rotors made of gray Determination of Sales at Less Than Huanri Group provided its response to cast iron, whether finished, Fair Value: Certain Partial–Extension the Department’s separate rates semifinished, or unfinished, with a Steel Drawer Slides with Rollers from questionnaire in this submission. diameter less than 8 inches or greater the People’s Republic of China, 60 FR On November 5, 2004, the petitioner than 16 inches (less than 20.32 29571 (June 5, 1995). We have no new requested that the Department publish a centimeters or greater than 40.64 information in this proceeding which separate notice of initiation and refrain centimeters) and a weight less than 8 would cause us to reconsider this from simultaneously issuing a pounds or greater than 45 pounds (less determination with regard to Huanri preliminary finding because it claimed than 3.63 kilograms or greater than Group. that Huanri Group did not give the 20.41 kilograms). Department sufficient information to Brake rotors are currently classifiable 2. De Facto Control conduct an expedited review; for under subheading 8708.39.5010 of the As stated in previous cases, there is example, the petitioner stated that it Harmonized Tariff Schedule of the some evidence that certain enactments raised concerns regarding the ownership United States (‘‘HTSUS’’). Although the of the PRC central government have not of Huanri Group on the public record of HTSUS subheading is provided for been implemented uniformly among the seventh administrative review, and convenience and customs purposes, the different sectors and/or jurisdictions in that these concerns were not addressed written description of the scope of this the PRC. See Silicon Carbide and in Huanri Group’s request for a changed review is dispositive. Furfuryl Alcohol. Therefore, the circumstances review. Department has determined that an On November 18, 2004, the Separate Rates analysis of de facto control is critical in Department issued a letter to Huanri In proceedings involving non–market determining whether the respondents Group requesting that they provide economy (‘‘NME’’) countries, the are, in fact, subject to a degree of additional information and Department begins with a rebuttable government control which would documentation addressing the presumption that all companies within preclude the Department from assigning company’s management structure, the country are subject to government separate rates. production facilities, supplier relations, control and thus should be assessed a The Department typically considers and customer base. On November 26, single antidumping duty deposit rate. four factors in evaluating whether a 2004, Huanri Group provided a To establish whether a firm is respondent is subject to de facto response to the Department’s November sufficiently independent from government control of its export 18, 2004, request for information. government control, and therefore functions: (1) Whether the export prices entitled to a separate rate, the are set by, or subject to the approval of, Scope of Review Department analyzes each exporting a government authority; (2) whether the The products covered by this review entity under a test arising out of Final respondent has authority to negotiate are brake rotors made of gray cast iron, Determination of Sales at Less Than and sign contracts and other whether finished, semifinished, or Fair Value: Sparklers from the People’s agreements; (3) whether the respondent unfinished, ranging in diameter from 8 Republic of China, 56 FR 20588 (May 6, has autonomy from the government in to 16 inches (20.32 to 40.64 centimeters) 1991) (‘‘Sparklers’’) and amplified in making decisions regarding the and in weight from 8 to 45 pounds (3.63 Final Determination of Sales at Less selection of management; and (4) to 20.41 kilograms). The size parameters Than Fair Value: Silicon Carbide from whether the respondent retains the (weight and dimension) of the brake the People’s Republic of China, 59 FR proceeds of its export sales and makes rotors limit their use to the following 22585 (May 2, 1994) (‘‘Silicon independent decisions regarding the types of motor vehicles: automobiles, Carbide’’). Under the separate rates disposition of profits or financing of all–terrain vehicles, vans, recreational criteria, the Department assigns separate losses. See Silicon Carbide and Furfuryl vehicles under ‘‘one ton and a half,’’ rates in NME cases only if the Alcohol. and light trucks designated as ‘‘one ton respondent can demonstrate the absence Huanri Group asserted the following: and a half.’’ of both de jure and de facto government (1) It establishes its own export prices; Finished brake rotors are those that control over export activities. (2) it negotiates contracts without are ready for sale and installation guidance from any government entities without any further operations. Semi– 1. De Jure Control or organizations; (3) it makes its own finished rotors are those rotors which Huanri Group has placed on the personnel decisions; and (4) it retains have undergone some drilling and on administrative record documentation to the proceeds of its export sales, uses which the surface is not entirely demonstrate absence of de jure profits according to its business needs, smooth. Unfinished rotors are those government control, including the 1994 and has the authority to sell its assets which have undergone some grinding or ‘‘Foreign Trade Law of the People’s and to obtain loans. Additionally, turning. Republic of China,’’ and the statements contained in Huanri Group’s These brake rotors are for motor ‘‘Administrative Regulations of the October 28, 2004, submission indicate vehicles and do not contain in the People’s Republic of China Governing that the company does not coordinate casting a logo of an original equipment the Registration of Legal Corporations,’’ its prices with other exporters. This manufacturer (‘‘OEM’’) which produces promulgated on June 3, 1988. information supports a initial finding vehicles sold in the United States (e.g., As in prior cases, we have analyzed that there is de facto absence of General Motors, Ford, Chrysler, Honda, these laws and have found them to government control of the export
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functions of Huanri Group. See Pure Department may assign the new Dated: December 13, 2004. Magnesium from the People’s Republic company the cash deposit rate of its James J. Jochum, of China: Preliminary Results of predecessor. See, e.g., Fresh and Chilled Assistant Secretary for Import Antidumping Duty New Shipper Atlantic Salmon from Norway: Final Administration. Administrative Review, 62 FR 55215 Results of Changed Circumstances [FR Doc. E4–3710 Filed 12–16–04; 8:45 am] (October 23, 1997). Consequently, for Antidumping Duty Administrative BILLING CODE 3510–DS–S purposes of initiating its request for a Review, 64 FR 9979, 9980 (March 1, changed circumstances review, we find 1999). that there is a sufficient basis to Based on data contained in its DEPARTMENT OF COMMERCE determine that Huanri Group has met October 28, 2004, submission and its the criteria for the application of a November 26, 2004, supplemental International Trade Administration separate rate. submission, Huanri Group has provided A–570–846 Initiation of Antidumping Duty sufficient evidence to warrant a review Brake Rotors from the People’s Changed Circumstances Review. to determine if it is the successor–in- interest to Huanri Group General based Republic of China: Notice of Extension Pursuant to section 751(b)(1) of the on the successor–in-interest criteria of Time Limit for Preliminary Results in Act, the Department will conduct a enunciated in Brass Sheet and the the Seventh Antidumping Duty changed circumstances review upon Department’s separate rates criteria Administrative Review and the receipt of information concerning, or a articulated in Sparklers and amplified Eleventh New Shipper Review request from an interested party for a in Silicon Carbide. However, we AGENCY: Import Administration, review of, an antidumping duty order consider it inappropriate to expedite which shows changed circumstances International Trade Administration, this review by combining the Department of Commerce. sufficient to warrant a review of the preliminary results of review with this EFFECTIVE DATE: December 17, 2004. order. In its October 28, 2004, notice of initiation, as permitted under submission and its November 26, 2004, FOR FURTHER INFORMATION CONTACT: 19 CFR 351.221(c)(3)(ii), because Huanri supplemental submission, Huanri Group’s request for this changed Amber Musser at (202) 482–1777, AD/ Group notified the Department that it circumstances review did not address CVD Operations, Office 9, Import had changed its name on June 9, 2004, Huanri Group General’s ownership, the Administration, International Trade following a change in ownership. In its Administration, U.S. Department of reasons for the change in ownership, or submissions, Huanri Group also stated Commerce, 14th Street and Constitution the change in legal classification. In that it has (1) retained the same Avenue, NW., Washington, DC, 20230. addition, we have not had sufficient management, (2) used the same time to analyze the data contained in Extension of Time Limit production facilities, (3) retained the Huanri Group’s November 26, 2004, same suppliers, and (4) maintained the Pursuant to section 751(a)(3)(A) of the same customers. The information supplemental submission. Therefore, Tariff Act of 1930, as amended (‘‘the submitted by Huanri Group that the Department is not issuing the Act’’), the Department of Commerce addresses the four aforementioned preliminary results of its antidumping (‘‘the Department’’) shall make a criteria, is sufficient to warrant a duty changed circumstances review at preliminary determination in an changed circumstance review. See 19 this time. administrative review of an CFR 351.216(c). The Department will publish in the antidumping duty order within 245 In antidumping duty changed Federal Register a notice of preliminary days after the last day of the anniversary circumstances reviews involving a results of antidumping duty changed month of the date of publication of the successor–in-interest determination, the circumstances review, in accordance order. The Act further provides, Department typically examines several with 19 CFR 351.221(b)(4) and 19 CFR however, that the Department may factors including, but not limited to, 351.221(c)(3)(I). This notice will set extend that 245–day period to 365 days changes in: (1) Management; (2) forth the factual and legal conclusions if it determines it is not practicable to production facilities; (3) supplier upon which our preliminary results are complete the review within the relationships; and (4) customer base. based and a description of any action foregoing time period. See Brass Sheet and Strip from Canada: proposed based on those results. Pursuant to 751(a)(2)(B)(iv) of the Act, Notice of Final Results of Antidumping Pursuant to 19 CFR 351.221(b)(4)(ii), the Department shall make a Administrative Review, 57 FR 20460, interested parties will have an preliminary determination in a new 20462 (May 13, 1992) (‘‘Brass Sheet’’). opportunity to comment on the shipper review within 180 days after the While no single factor or combination of preliminary results of review. In date on which the review is initiated. factors will necessarily be dispositive, accordance with 19 CFR 351.216(e), the However, if the case is extraordinarily the Department generally will consider Department will issue the final results complicated, it may extend the 180–day the new company to be the successor to of its antidumping duty changed period for the preliminary results to 300 the predecessor company if the resulting circumstances review not later than 270 days. operations are essentially the same as days after the date on which the review The Department initiated the seventh those of the predecessor company. See, is initiated. administrative review of the e.g., Industrial Phosphorus Acid from During the course of this antidumping antidumping duty order on brake rotors Israel: Final Results of Changed duty changed circumstances review, we from the People’s Republic of China Circumstances Review, 59 FR 6944, will not change the cash deposit (‘‘PRC’’) (69 FR 30282) on May 27, 2004 6945 (February 14, 1994), and Brass requirements for the merchandise and the eleventh new shipper review of Sheet. Thus, if the record evidence subject to review. The cash deposit will the antidumping duty order on brake demonstrates that, with respect to the only be altered, if warranted, pursuant rotors from the PRC (69 FR 29920) on production and sale of the subject to the final results of this review. May 26, 2004. Pursuant to section merchandise, the new company This notice of initiation is in 351.214(j)(3) of its regulations, the operates as the same business entity as accordance with section 751(b)(1) of the Department is conducting these reviews the predecessor company, the Act and 19 CFR 351.216 and 351.222. concurrently.
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The Department finds that it is not quality line pipe from Mexico, the 7306.10.5054, 7306.10.5055, and practicable to complete the preliminary Republic of Korea, and the PRC. The 7306.10.5059. The HTSUS results in the administrative review and Petitioners are domestic producers of classifications are provided for new shipper review of brake rotors from certain circular welded carbon quality convenience and customs purposes; the PRC within this time limit. line pipe. The Department requested however, the written description of the Specifically, due to resource constraints additional information for purposes of scope of this investigation is dispositive. determining industry support. See and the number of respondents and Termination of Investigation issues in this review, we find that Notice of Initiation of Antidumping additional time is needed in order to Duty Investigation: Certain Circular On December 8, 2004, the Department complete these preliminary results. Welded Carbon Quality Line Pipe from received a letter from the Petitioners Therefore, in accordance with section Mexico, the Republic of Korea, and the notifying the Department that they are 751(a)(3)(A) of the Act, the Department People’s Republic of China, 69 FR no longer interested in seeking relief is extending the time for completion of 16521, 16522 (March 30, 2004) and are withdrawing their petition for the preliminary results of these reviews (‘‘Initiation Notice’’). The Department certain circular welded carbon quality until April 30, 2005. initiated this investigation, and notice line pipe from the PRC. Under section 734(a)(1)(A) of the Tariff Act of 1930 Dated: December 10, 2004. was published in the Federal Register. See Initiation Notice, 69 FR at 16521. (‘‘the Act’’), upon withdrawal of a Barbara E. Tillman, On April 27, 2004, the International petition, the administering authority Acting Deputy Assistant Secretary for Import Trade Commission (‘‘ITC’’) issued its may terminate an investigation after Administration. determination that there is a reasonable giving notice to all parties to the [FR Doc. E4–3714 Filed 12–16–04; 8:45 am] indication that an industry in the investigation. We have notified all BILLING CODE: 3510–DS–S United States is materially injured or parties to this investigation and the ITC threatened with material injury by of the Petitioners’ withdrawal and our reason of imports of circular welded intention to terminate this proceeding. DEPARTMENT OF COMMERCE carbon quality line pipe from the PRC. Section 351.207(b)(1) of the Department’s regulations states that the International Trade Administration See Certain Welded Carbon Quality Line Pipe from China, Korea, and Mexico: Department may terminate an (A–570–897) Investigations Nos. 731–TA–1073–1075 investigation upon withdrawal of a (Preliminary). petition provided it concludes that Notice of Termination of Antidumping On October 8, 2004, the Department termination is in the public interest. Duty Investigation: Certain Circular published in the Federal Register the Because the Petitioners are no longer Welded Carbon Quality Line Pipe from notice of preliminary determination for interested in obtaining relief, we have the People’s Republic of China this antidumping duty investigation. determined that termination would be AGENCY: Import Administration, See Notice of Preliminary Determination in the public interest. Based on International Trade Administration, of Sales at Less Than Fair Value: information currently on the record of Department of Commerce. Certain Circular Welded Carbon Quality the above–mentioned proceeding, the Line Pipe from the People’s Republic of Department is terminating the EFFECTIVE DATE: December 17, 2004. China, 69 FR 60353 (October 8, 2004). antidumping duty investigation on SUMMARY: On December 8, 2004, certain circular welded carbon quality American Steel Pipe Division of Scope of the Investigation American Cast Iron Pipe Company, line pipe from the PRC. This investigation covers circular This action is taken pursuant to IPSCO Tubulars Inc., Lone Star Steel welded carbon quality steel pipe of a section 351.207(b)(1) of the Company, Maverick Tube Corporation, kind used for oil and gas pipelines, not Department’s regulations. Northwest Pipe Company, and Stupp more that 406.4 mm (16 inches) in Dated: December 13, 2004. Corporation (collectively ‘‘the outside diameter, regardless of wall James J. Jochum, Petitioners’’) withdrew their thickness, surface finish (black, or antidumping petition, filed on March 3, coated with any coatings compatible Assistant Secretary for Import Administration. 2004, regarding certain circular welded with line pipe), and regardless of end carbon quality line pipe from the finish (plain end, beveled ends for [FR Doc. E4–3713 Filed 12–16–04; 8:45 am] People’s Republic of China (‘‘PRC’’). welding, threaded ends or threaded and BILLING CODE 3510–DS–S Based on this withdrawal, the coupled, as well as any other special Department of Commerce (‘‘the end finishes), and regardless of DEPARTMENT OF COMMERCE Department’’) is now terminating this stenciling. Excluded from this investigation. proceeding are line pipe in nominal International Trade Administration FOR FURTHER INFORMATION CONTACT: pipe size outer diameter of 1@ inch and Brian C. Smith at 202–482–1766, AD/ less. A–337–806 CVD Operations, Office 9, Import The merchandise subject to this Individually Quick Frozen Red Administration, International Trade investigation is currently classifiable in Raspberries from Chile: Notice of Administration, U.S. Department of the Harmonized Tariff Schedule of the Partial Rescission of Antidumping Commerce, 14th Street and Constitution United States (‘‘HTSUS’’) at heading Duty Administrative Review Avenue, NW., Washington, DC 20230. 7306 and subheadings 7306.10.10.10, SUPPLEMENTARY INFORMATION: 7306.10.1013, 7306.10.1014, AGENCY: Import Administration, 7306.10.1015, 7306.10.1019, International Trade Administration, Case History 7306.10.1050, 7306.10.1053, Department of Commerce. On March 3, 2004, the Department 7306.10.1054, 7306.10.1055, SUMMARY: In response to requests from received an antidumping duty petition 7306.10.1059, 7306.10.5010, interested parties, the Department of filed in proper form by the Petitioners 7306.10.5013, 7306.10.5014, Commerce is conducting an for the imposition of antidumping 7306.10.5015, 7306.10.5019, administrative review of the duties on certain circular welded carbon 7306.10.5050, 7306.10.5053, antidumping duty order on individually
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quick frozen red raspberries from Chile. December 7, 2004, Valles Andinos Prima Agrotrading, Ltda. This review covers sales of individually withdrew its request for review. Procesadora y Exportadora quick frozen red raspberries to the de Frutas y Vegetales Partial Rescission of Antidumping United States during the period July 1, Rio Teno, S.A. Administrative Review 2003 through June 30, 2004. Based on Sociedad Agricola Valle the withdrawal of requests for review Alifrut filed its withdrawal request del Laja, Ltda. with respect to certain companies, we within the deadline established by the Sociedad Exportaciones are rescinding, in part, the second Department. The withdrawal requests Antiquina, Ltda. administrative review. made by the petitioners and Valles Sociedad San Ernesto, Ltda. Terra Natur, S.A. EFFECTIVE DATE: December 17, 2004. Andinos were submitted to the Department after the withdrawal Terrazas Export, S.A. FOR FURTHER INFORMATION CONTACT: deadline of November 28, 2004. Uren Chile, S.A. Yasmin Bordas, AD/CVD Operations, However, 19 CFR 351.213(d)(1) permits Valles Andinos, S.A. Office 1, Import Administration, the Department to extend the deadline The following companies remain International Trade Administration, for withdrawal requests if ‘‘it is respondents in this administrative U.S. Department of Commerce, 14th reasonable to do so.’’ Because we have review based on their original Street and Constitution Avenue, N.W., not received objections to any of the individual requests for review: Olmue, Washington D.C. 20230; telephone (202) withdrawal requests, the Department SANCO, and Vital Berry. We intend to 482–3813. has accepted these requests. Therefore, issue our preliminary results in this SUPPLEMENTARY INFORMATION: we are rescinding the above–cited administrative review for Olmue, SANCO, and Vital Berry by April 2, Background administrative review with respect to the following companies in accordance 2005. On July 1, 2004, the Department of with 19 CFR 351.213(d)(1): Assessment Commerce (‘‘the Department’’) Agricola Nova, Ltda. published in the Federal Register the Agrocomercial Las The Department will instruct U.S. Notice of Antidumping or Tinajas, Ltda. Customs and Border Protection (‘‘CBP’’) Countervailing Duty Order, Finding, or Agrofruta Chilena, Ltda. to assess antidumping duties on all Suspended Investigation; Opportunity Agroindustria Framberry, Ltda. appropriate entries. For those to Request Administrative Review, 69 Agroindustria Niquen, Ltda. companies for which this review is FR 39903 (July 1, 2004), for the above– Agroindustria Sagrada rescinded, antidumping duties shall be cited segment of this antidumping duty Familia, Ltda. assessed at rates equal to the cash proceeding. We received a timely filed Agroindustria y Frigorifico deposit of estimated antidumping duties request for review for 52 companies M y M, Ltda. required at the time of entry, or from the Pacific Northwest Berry Agroindustrial Frisac, Ltda. withdrawal from warehouse, for Association, Lynden, Washington, and Agroindustrial Frutos consumption, in accordance with 19 each of its individual members, Curt del Maipo, Ltda. CFR 351.212(c)(1)(i). Maberry Farm; Enfield Farms, Inc.; Agroindustrial Merco Trading, Ltda. The Department will issue Maberry Packing; and Rader Farms, Inc. Agroindustrias San Francisco, Ltda. appropriate assessment instructions (collectively, ‘‘the petitioners’’). We also Agross, S.A. directly to CBP within 15 days of received timely filed requests for review Alimentos Prometeo, Ltda. publication of this notice. from Fruticola Olmue, S.A. (‘‘Olmue’’); Alimentos y Frutos, S.A. Cash Deposit Rates Santiago Comercio Exterior Andesur, S.A. Exportaciones, Ltda. (‘‘SANCO’’); Valles Angloeuro Comercio Exterior, S.A. For the companies for which this Andinos, S.A. (‘‘Valles Andinos’’); Vital Armijo Carrasco, Claudio del Carmen review is rescinded, the cash deposit Berry Marketing, S.A. (‘‘Vital Berry’’); Arvalan, S.A. rate will continue to be 6.33 percent, the and Alimentos y Frutos and its affiliate, Bajo Cero, S.A. ‘‘all others’’ rate established in the less– Vita Food, S.A. (collectively, ‘‘Alifrut’’).1 Certified Pure Ingredients (Chile) Inc. than-fair–value investigation. See Notice On August 30, 2004, the Department y Cia., Ltda. of Amended Final Determination of published in the Federal Register the Chile Andes Foods, S.A. Sales at Less Than Fair Value: IQF Red Notice of Initiation of Antidumping and Comercializadora Agricola Raspberries from Chile, 67 FR 40270 Countervailing Duty Administrative Berries & Fruit, Ltda. (June 12, 2002). Reviews and Requests for Revocation in Comercializadora de Alimentos These cash deposit requirements shall Part, 69 FR 52857 (August 30, 2004), del Sur, Ltda. remain in effect until publication of the initiating this review for all 52 Comercio y Servicios, S.A. final results of the next administrative companies. On November 17, 2004, Copefrut, S.A. review. C y C Group, S.A. Alifrut timely withdrew its request for Notification to Importers review. See 19 CFR 351.213(d)(1). On Exportaciones Meyer, S.A. November 29, 2004, we received a Exportadora Pentagro, S.A. This notice serves as a reminder to submission from the petitioners Francisco Nancuvilu Punsin importers of their responsibility under withdrawing their request for review for Frigorifico Ditzler, Ltda. 19 CFR 351.402(f)(2) to file a certificate all of the companies for which they had Frutas de Guaico, S.A. regarding the reimbursement of requested an administrative review. On Fruticola Viconto, S.A. antidumping duties prior to liquidation December 1, 2004, the petitioners Hassler Monckeberg, S.A. of the relevant entries during this submitted a revised request to correct a Hortifrut, S.A. review period. Failure to comply with typographical error made in the Interagro Comercio y Ganado, S.A. this requirement could result in the November 29, 2004, request. On Kugar Export, Ltda. Secretary’s presumption that Maria Teresa Ubilla Alarcon reimbursement of antidumping duties 1 These five companies were included in the Multifrigo Valparaiso, S.A. occurred and the subsequent assessment petitioners’ request for review for 52 companies. Nevada Export, S.A. of doubled antidumping duties.
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Notification Regarding APOs Trade Administration, U.S. Department stainless steel products of a thickness of This notice also serves as a reminder of Commerce, 14th Street and 4.75 mm or more); (4) flat wire (i.e., to parties subject to administrative Constitution Avenue, NW., Washington, cold–rolled sections, with a prepared protective orders (‘‘APOs’’) of their DC 20230; telephone: (202) 482–5050. edge, rectangular in shape, of a width of responsibility concerning the return or SUPPLEMENTARY INFORMATION: not more than 9.5 mm); and (5) razor blade steel. Razor blade steel is a flat– destruction of proprietary information Scope of the Order disclosed under APO in accordance rolled product of stainless steel, not with 19 CFR 351.305, which continues The merchandise subject to this order further worked than cold–rolled (cold– to govern business proprietary is certain stainless steel sheet and strip reduced), in coils, of a width of not information in this segment of the in coils. Stainless steel is an alloy steel more than 23 mm and a thickness of proceeding. Timely written notification containing, by weight, 1.2 percent or 0.266 mm or less, containing, by weight, of the return/destruction of APO less of carbon and 10.5 percent or more 12.5 to 14.5 percent chromium, and of chromium, with or without other certified at the time of entry to be used materials or conversion to judicial 1 protective order is hereby requested. elements. The subject sheet and strip is in the manufacture of razor blades. In response to comments by interested Failure to comply with the regulations a flat–rolled product in coils that is greater than 9.5 mm in width and less parties, the Department has determined and terms of an APO is a violation than 4.75 mm in thickness, and that is that certain specialty stainless steel which is subject to sanction. This notice is issued and published in annealed or otherwise heat treated and products are also excluded from the accordance with section 777(i) of the pickled or otherwise descaled. The scope of this order. These excluded Tariff Act of 1930, as amended and 19 subject sheet and strip may also be products are described below. Flapper valve steel is defined as CFR 351.213(d)(4). further processed (i.e., cold–rolled, polished, aluminized, coated, etc.) stainless steel strip in coils containing, Dated: December 13, 2004. provided that it maintains the specific by weight, between 0.37 and 0.43 James J. Jochum, dimensions of sheet and strip following percent carbon, between 1.15 and 1.35 Assistant Secretary for Import such processing. percent molybdenum, and between 0.20 Administration. The subject merchandise is currently and 0.80 percent manganese. This steel [FR Doc. E4–3715 Filed 12–16–04; 8:45 am] classifiable in the Harmonized Tariff also contains, by weight, phosphorus of BILLING CODE 3510–DS–S Schedule of the United States (‘‘HTS’’) 0.025 percent or less, silicon of between at subheadings: 7219.13.00.31, 0.20 and 0.50 percent, and sulfur of 7219.13.00.51, 7219.13.00.71, 0.020 percent or less. The product is DEPARTMENT OF COMMERCE 7219.13.00.81, 7219.14.00.30, manufactured by means of vacuum arc 7219.14.00.65, 7219.14.00.90, remelting, with inclusion controls for International Trade Administration 7219.32.00.05, 7219.32.00.20, sulfide of no more than 0.04 percent and [C–580–835] 7219.32.00.25, 7219.32.00.35, for oxide of no more than 0.05 percent. 7219.32.00.36, 7219.32.00.38, Flapper valve steel has a tensile strength Stainless Steel Sheet and Strip in Coils 7219.32.00.42, 7219.32.00.44, of between 210 and 300 ksi, yield from the Republic of Korea: Final 7219.33.00.05, 7219.33.00.20, strength of between 170 and 270 ksi, Results of Expedited Sunset Review of 7219.33.00.25, 7219.33.00.35, plus or minus 8 ksi, and a hardness (Hv) Countervailing Duty Order 7219.33.00.36, 7219.33.00.38, of between 460 and 590. Flapper valve 7219.33.00.42, 7219.33.00.44, steel is most commonly used to produce AGENCY: Import Administration, 7219.34.00.05, 7219.34.00.20, International Trade Administration, specialty flapper valves for compressors. 7219.34.00.25, 7219.34.00.30, Also excluded is a product referred to Department of Commerce. 7219.34.00.35, 7219.35.00.05, as suspension foil, a specialty steel SUMMARY: The Department of Commerce 7219.35.00.15, 7219.35.00.30, (‘‘the Department’’) initiated a sunset product used in the manufacture of 7219.35.00.35, 7219.90.00.10, review of the countervailing duty suspension assemblies for computer 7219.90.00.20, 7219.90.00.25, (‘‘CVD’’) order on stainless steel sheet disk drives. Suspension foil is described 7219.90.00.60, 7219.90.00.80, and strip in coils from the Republic of as 302/304 grade or 202 grade stainless 7220.12.10.00, 7220.12.50.00, Korea (‘‘Korea’’). See Initiation of Five– steel of a thickness between 14 and 127 7220.20.10.10, 7220.20.10.15, microns, with a thickness tolerance of Year (‘‘Sunset’’) Reviews, 69 FR 30874 7220.20.10.60, 7220.20.10.80, (June 1, 2004). On the basis of a notice plus–or-minus 2.01 microns, and 7220.20.60.05, 7220.20.60.10, surface glossiness of 200 to 700 percent of intent to participate, an adequate 7220.20.60.15, 7220.20.60.60, substantive response filed on behalf of Gs. Suspension foil must be supplied in 7220.20.60.80, 7220.20.70.05, coil widths of not more than 407 mm, domestic interested parties, and 7220.20.70.10, 7220.20.70.15, inadequate substantive responses filed and with a mass of 225 kg or less. Roll 7220.20.70.60, 7220.20.70.80, marks may only be visible on one side, by respondent interested parties, the 7220.20.80.00, 7220.20.90.30, Department conducted an expedited with no scratches of measurable depth. 7220.20.90.60, 7220.90.00.10, The material must exhibit residual sunset review. In conducting this sunset 7220.90.00.15, 7220.90.00.60, and review, the Department finds that stresses of 2 mm maximum deflection, 7220.90.00.80. Although the HTS and flatness of 1.6 mm over 685 mm revocation of the CVD order is likely to subheadings are provided for lead to continuation or recurrence of a length. convenience and customs purposes, the Certain stainless steel foil for countervailable subsidy. The net Department’s written description of the automotive catalytic converters is also countervailable subsidy is identified in merchandise is dispositive. excluded from the scope of this order. the ‘‘Final Results of Review’’ section of Excluded from the scope of this order This stainless steel strip in coils is a this notice are the following: (1) Sheet and strip specialty foil with a thickness of EFFECTIVE DATE: December 17, 2004. that is not annealed or otherwise heat between 20 and 110 microns used to FOR FURTHER INFORMATION CONTACT: treated and pickled or otherwise Martha V. Douthit, Office of Policy, descaled; (2) sheet and strip that is cut 1 See Chapter 72 of the HTSUS, ‘‘Additional U.S. Import Administration, International to length; (3) plate (i.e., flat–rolled Note’’ 1(d).
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produce a metallic substrate with a niobium, and titanium added to achieve Participate’’ from the domestic honeycomb structure for use in aging, and will exhibit yield strengths as interested parties Allegheny Ludlum automotive catalytic converters. The high as 1700 Mpa and ultimate tensile Corporation, Nucor Corporation, United steel contains, by weight, carbon of no strengths as high as 1750 Mpa after Steelworkers of America (AFL–CIO/ more than 0.030 percent, silicon of no aging, with elongation percentages of 3 CLC), Local 3303 United Auto Workers more than 1.0 percent, manganese of no percent or less in 50 mm. It is generally (formerly the Butler Armco Independent more than 1.0 percent, chromium of provided in thicknesses between 0.635 Union, and the Zanesville Armco between 19 and 22 percent, aluminum and 0.787 mm, and in widths of 25.4 Independent Organization, Inc., of no less than 5.0 percent, phosphorus mm. This product is most commonly (collectively ‘‘the domestic interested of no more than 0.045 percent, sulfur of used in the manufacture of television parties’’) within the deadline specified no more than 0.03 percent, lanthanum tubes and is currently available under in section 351.218(d)(1)(I) of the of between 0.002 and 0.05 percent, and proprietary trade names such as Department’s regulations (‘‘Sunset total rare earth elements of more than ‘‘Durphynox 17.’’4 Regulations’’). The domestic interested 0.06 percent, with the balance iron. Finally, three specialty stainless steels parties claimed interested party status Permanent magnet iron–chromium- typically used in certain industrial under sections 771(9)(C) and (D) of the cobalt alloy stainless strip is also blades and surgical and medical Act. We received a complete substantive excluded from the scope of this order. instruments are also excluded from the responses from the domestic interested This ductile stainless steel strip scope of this order. These include parties within the 30–day deadline contains, by weight, 26 to 30 percent stainless steel strip in coils used in the chromium, and 7 to 10 percent cobalt, specified in 19 CFR 351.218(d)(3)(i). In production of textile cutting tools (i.e., addition, we received a complete with the remainder of iron, in widths carpet knives).5 This steel is similar to 228.6 mm or less, and a thickness substantive response from INI Steel ASTM grade 440F, but containing, by Company (‘‘INI’’), formerly Inchon Iron between 0.127 and 1.270 mm. It exhibits weight, 0.5 to 0.7 percent of magnetic remanence between 9,000 and and Steel Company, Ltd., and BNG Steel molybdenum. The steel also contains, Company (‘‘BNG’’), formerly Sammi 12,000 gauss, and a coercivity of by weight, carbon of between 1.0 and between 50 and 300 oersteds. This Steel Co., Ltd. (‘‘Sammi’’) (collectively, 1.1 percent, sulfur of 0.020 percent or ‘‘respondent interested parties’’), within product is most commonly used in less, and includes between 0.20 and electronic sensors and is currently the 30–day deadline specified in 19 CFR 0.30 percent copper and between 0.20 351.218(d)(3)(i). available under proprietary trade names and 0.50 percent cobalt. The second such as ‘‘Arnokrome III.’’2 excluded stainless steel strip in coils is On July 21, 2004, the Department Certain electrical resistance alloy steel similar to AISI 420–J2 and contains, by determined that respondent interested is also excluded from the scope of this weight, carbon of between 0.62 and 0.70 parties response constituted an order. This product is defined as a non– percent, silicon of between 0.20 and inadequate response to the notice of magnetic stainless steel manufactured to 0.50 percent, manganese of between initiation.7 See Memorandum for American Society of Testing and 0.45 and 0.80 percent, phosphorus of no Ronald K. Lorentzen, Re: Stainless Steel Materials (ASTM) specification B344 more than 0.025 percent and sulfur of Sheet and Strip from South Korea, and containing, by weight, 36 percent no more than 0.020 percent. This steel Adequacy of Respondent Interested nickel, 18 percent chromium, and 46 has a carbide density on average of 100 Parties’ Response to the Notice of percent iron, and is most notable for its carbide particles per square micron. An Initiation (July 21, 2004). The resistance to high temperature example of this product is ‘‘GIN5’’ steel. Department notified the ITC of corrosion. It has a melting point of 1390 The third specialty steel has a chemical inadequate respondent responses to the degrees Celsius and displays a creep composition similar to AISI 420 F, with notice of initiation, and conducted an rupture limit of 4 kilograms per square carbon of between 0.37 and 0.43 expedited sunset review of this millimeter at 1000 degrees Celsius. This percent, molybdenum of between 1.15 antidumping duty order. See Letter to steel is most commonly used in the and 1.35 percent, but lower manganese ITC, Inadequate Respondent Response, production of heating ribbons for circuit of between 0.20 and 0.80 percent, July 21, 2004, pursuant to sections breakers and industrial furnaces, and in phosphorus of no more than 0.025 751(c)(3)(B) of the Act and 19 CFR rheostats for railway locomotives. The percent, silicon of between 0.20 and 351.218(e)(1)(ii)(c)(2). product is currently available under 0.50 percent, and sulfur of no more than The final results of this sunset review proprietary trade names such as ‘‘Gilphy 0.020 percent. This product is supplied 36.’’3 was originally scheduled for September with a hardness of more than Hv 500 29, 2004; however, the Department Certain martensitic precipitation– guaranteed after customer processing, hardenable stainless steel is also extended the final results until and is supplied as, for example, ‘‘GIN6.’’6 excluded from the scope of this order. November 15, 2004. See Notice of This high–strength, ductile stainless Background Extension of Time Limit for the Final Results of Sunset Reviews of steel product is designated under the On June 1, 2004, the Department Unified Numbering System (UNS) as Antidumping and Countervailing Duty initiated a sunset review of the CVD Orders: Stainless Steel Sheet and Strip S45500–grade steel, and contains, by order on SSSS from Korea pursuant to weight, 11 to 13 percent chromium, and section 751(c) of the Tariff Act of 1930, 7 A complete substantive response was submitted 7 to 10 percent nickel. Carbon, as amended (‘‘the Act’’). See Initiation manganese, silicon and molybdenum to the Department on behalf of respondents INI of Five–Year (‘‘Sunset’’) Reviews, 69 FR Steel Company and BNG Steel Company, however, each comprise, by weight, 0.05 percent 30874 (June 1, 2004). The Department in accordance with section 351.218(d)(3)(v) of the or less, with phosphorus and sulfur received a ‘‘Notice of Intent to Department’s regulations, information is required to each comprising, by weight, 0.03 be filed by the foreign government in a CVD sunset review. In this CVD proceeding the Government of percent or less. This steel has copper, 4 ‘‘Durphynox 17’’ is a trademark of Imphy, S.A. Korea did not respond to the Department’s notice 5 This list of uses is illustrative and provided for of initiation. Pursuant to section 351.218(e)(1)(ii)(C) 2 ‘‘Arnokrome III’’ is a trademark of the Arnold descriptive purposes only. of the Department’s regulations, the Department Engineering Company. 6 ‘‘GIN4 Mo’’, ‘‘GIN5’’ and ‘‘GIN6’’ are the conducted an expedited sunset review under 3’’‘‘Gilphy 36’’ is a trademark of Imphy, S.A. proprietary grades of Hitachi Metals America, Ltd. section 751(c)(3)(B) of the Act.
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in Coils from Germany, Italy, Japan, to apply (see Article 31 of the Subsidies DATES: Recommendations must be Korea, Taiwan and the United Kingdom. Agreement). submitted to NIST no later than 5 p.m., EST, January 15, 2005. Analysis of Comments Received This notice also serves as the only reminder to parties subject to ADDRESSES: All recommendations must All issues raised in this case are administrative protective orders be submitted to Dr. Ajit Jillavenkatesa addressed in the ‘‘Issues and Decision (‘‘APO’’) of their responsibility via e-mail ([email protected]) or by mail Memorandum’’ (‘‘Decision Memo’’) concerning the return of destruction of to 100 Bureau Drive, Stop 2100, from Ronald K. Lorentzen, Acting proprietary information disclosed under Gaithersburg, MD 20899. Director, Office of Policy, Import APO in accordance with 19 CFR FOR FURTHER INFORMATION CONTACT: Ajit Administration, to James J. Jochum, 351.305. Timely notification of the Jillavenkatesa (301) 975–5089, Assistant Secretary for Import return or destruction of APO materials [email protected]. Administration, dated December 10, or conversion to jusicial protective order SUPPLEMENTARY INFORMATION: The 2004, which is hereby adopted by this is hereby requested. Failure to comply proposed fourth US-China Workshop on notice. The issues discussed in the with the regulations and terms of an Standards and Conformity Assessment Decision Memo include the likelihood APO is a violation which is subject to expands the continuing dialog between of continuation or recurrence of sanction. the U.S. and China to address issues dumping and the magnitude of the This five–year (‘‘sunset’’) review and related to development of standards, margin likely to prevail if the order were notice are in accordance with sections their adoption and/or implementation, to be revoked. Parties can find a 751(c), 752, and 777(i)(1) of the Act. and conformity assessment procedures complete discussion of all issues raised Dated: December 10, 2004. impacting trade between the two in this review and the corresponding countries. The workshop is designed to James J. Jochum, recommendations in this public provide timely information and memorandum, which is on file in room Assistant Secretary for Import facilitate dialog between U.S. and Administration. B–099 of the main Commerce Building. Chinese industry and government In addition, a complete version of the [FR Doc. E4–3711 Filed 12–16–04; 8:45 am] experts on developments both in general Decision Memo can be accessed directly Billing Code 3510–DS–S policy matters and issues in specific on the Web at http://ia.ita.doc.gov/frn, sectors, and to explore means for future under the heading ‘‘December 2004.’’ DEPARTMENT OF COMMERCE collaboration. The paper copy and electronic version The proposed workshop is a two or of the Decision Memo are identical in National Institute of Standards and three day program offering an overview content. Technology of the roles of the Government and Final Results of Review private sector in both the United States and China, and regional and The Department determines that [Docket No. 041119324–4324–01] international organizations engaged in revocation of the CVD order on SSSS Request for Technical Input—U.S.- standards development and conformity from Korea is likely to lead to China Workshop on Standards and assessment practices. Specific workshop continuation or recurrence of Conformity Assessment objectives are to: (1) Familiarize countervailable subsidies at the participants with practices in the U.S. following net subsidy rates: AGENCY: National Institute of Standards and China in the areas of metrology, and Technology, Department of standardization, and conformity Manufacturers/Pro- Net Subsidy Rate Commerce. assessment; (2) describe and understand ducers/Exporters (percent) the roles of the U.S. and Chinese ACTION: Request for workshop governments and the private sector in INI/BNG ...... 0.54 recommendations. Dai Yang Metal Com- developing and implementing pany ...... 0.67 standards; (3) develop professional Taihan ...... 4.64 SUMMARY: The National Institute of contacts as a basis for strengthening All Others ...... 0.63 Standards and Technology (NIST) technical ties and enhancing trade; and invites interested parties to submit (4) discuss specific standards and Nature of the Subsidy recommendations for focus areas in a conformity assessment-related technical US-China Workshop on Standards and barriers. Consistent with section 752(a)(6) of Conformity Assessment. Workshop recommendations the Act, the Department will provide to Recommendations should include (maximum 3 pages) must address at the ITC information concerning the general policy issues and specific minimum the following points, in the nature of the subsidy, and whether the sectors and topics where information order noted and labeled accordingly: subsidy is a subsidy described in Article exchange about the U.S. and Chinese 1. Name and description of the 3 or Article 6.1 of the Subsidies systems of standards development, recommending organization. Provide Agreement. Because some programs not conformity assessment, and metrology the primary mailing address and a brief falling within the definition of an export may facilitate trade. The prospective description of the organization, subsidy under Article 3.1(a) of the workshop is tentatively scheduled as a including the name, telephone number Subsidies Agreement could be found to two or three day program to be held in and e-mail address of the primary point be inconsistent with Article 6 if the net late August or early September 2005. of contact. countervailable subsidy exceeds five This notice is not an invitation for 2. Industry sector for workshop focus. percent (as measured in accordance proposals to fund grants, contracts or Provide a description of the suggested with Annex IV of the Subsidies cooperative agreements of any kind. industrial sector and focus area for Agreement), we are providing the ITC NIST will consider recommendations break-out sessions during the workshop. with program descriptions in our based upon which workshop focus areas Consider the goals and potential Decision Memo. We note that as of would be most useful to intended benefits. Also, identify standards and January 1, 2000, Article 6.1 has ceased audiences. conformity assessment related issues
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that currently or could pose market Apparel, U.S. Department of Commerce, Lebanon, Macau, Malaysia, Maldives, barriers. (202) 482–3400. Mauritius, Macedonia, Nepal, Oman, Pakistan, Panama, Peru, Poland, Philippines, 3. Principal topics. Describe the SUPPLEMENTARY INFORMATION: suggested topics for the workshop, for Qatar, Romania, Singapore, Slovak Republic, Authority: Executive Order 11651 of March Sri Lanka, Taiwan, Thailand, Trinidad, inclusion in a plenary session and 3, 1972, as amended; Section 204 of the Turkey, UAE, and Uruguay. break-out sessions. Agricultural Act of 1956, as amended (7 The Committee for the Implementation of 4. Please state which venue for U.S.C. 1854). Textile Agreement has determined that this holding the workshop, the U.S. The WTO Agreement on Textiles and action falls within the foreign affairs (Washington, DC area) or China Clothing (ATC), approved by Congress exception to the rulemaking provisions of 5 (Beijing), would be most convenient and as part of the Uruguay Round U.S.C. 553(a)(1). include a brief explanation as to why. Agreements Act, provides for the Sincerely, 5. Proposed foreign participants. integration of the textiles and clothing James C. Leonard III, Provide a representative list of the Chairman, Committee for the sectors into the General Agreement on Implementation of Textile Agreements. organizations that you would like to see Tariffs and Trade 1994. In accordance invited to participate in the workshop, with its obligations under the ATC, and [FR Doc. 04–27789 Filed 12–15–04; 4:05 pm] including a description of their function consistent with Section 331 of the BILLING CODE 3510–DS–U or business and their country of Uruguay Round Agreements Act and the incorporation or origin. Also, please schedule announced by CITA on May 1, identify potential Chinese participants 1995 (60 FR 21075), the United States COMMITTEE FOR THE and speakers. will no longer impose textile and IMPLEMENTATION OF TEXTILE 6. U.S. stakeholder participants (e.g., apparel quotas under the ATC for goods AGREEMENTS associations, agencies, companies, exported on or after January 1, 2005. Solicitation of Public Comments on users, others). Provide a list of the U.S.- Consistent with these obligations, the Request for Textile and Apparel based organizations that are likely to United States has informed its trading Safeguard Action on Imports From partner with you for participation in the partners with whom it has entered into China workshop. visa arrangements in order to carry out 7. Proposed focus area objectives. such quotas and which are members of AGENCY: The Committee for the Describe the intended goals to be the WTO that such visa arrangements Implementation of Textile Agreements attained and why they are important. will be terminated and will not apply to (the Committee). Additional information about the first goods exported from the country of ACTION: Solicitation of public comments three workshops in this series is origin on and after January 1, 2005. concerning a request for safeguard available at http://ts.nist.gov/ts/htdocs/ In the letter below, CITA instructs the action on imports from China of knit 210/gsig/apec1.htm#workshop, Bureau of Customs and Border fabric (Category 222). http://www.technology.gov/Prel/ Protection to cancel all requirements for pr040819.htm, http://www.mac.doc.gov/ visas, ELVIS transmissions, GAL SUMMARY: The Committee has received a china/workshop%20summary.htm. certifications, and exempt certifications, request from the National Council of Dated: December 8, 2004. for goods exported from the country of Textile Organizations, the National Hratch G. Semerjian, origin on or after January 1, 2005. For Textile Association, the American Manufacturing Trade Action Coalition, Acting Director. goods that are the product of countries that are not members of the WTO, and UNITE HERE! (Requestors) asking [FR Doc. 04–27646 Filed 12–16–04; 8:45 am] applicable requirements for visas, ELVIS the Committee to reapply the limit on BILLING CODE 3510–13–P transmissions, GAL certifications, and imports from China of knit fabric in exempt certifications will remain in accordance with the textile and apparel effect. safeguard provision of the Working COMMITTEE FOR THE Party on the Accession of China to the James C. Leonard III, World Trade Organization (the IMPLEMENTATION OF TEXTILE Chairman, Committee for the Implementation AGREEMENTS Accession Agreement). On December of Textile Agreements. 24, 2003 the Committee established an Cancellation of Visa, ELVIS, Committee for the Implementation of Textile Accession Agreement limit on imports Guaranteed Access Level (GAL) Agreements from China of knit fabric, which will Certification, and Exempt Certification Commissioner, Bureau of Customs and expire on December 23, 2004. The Requirements for Member Countries of Border Protection, Washington, DC 20229. Committee hereby solicits public the World Trade Organization (WTO) Dear Commissioner: This directive cancels comments on this request. all previous directives concerning FOR FURTHER INFORMATION CONTACT: Jay requirements for visa, ELVIS transmissions, December 14, 2004. Dowling, Office of Textiles and Apparel, AGENCY: Committee for the Guaranteed Access Level (GAL) Certifications, and Exempt Certifications, U.S. Department of Commerce, (202) Implementation of Textile Agreements 482–4058. (CITA). issued to you by the Chairman, Committee for the Implementation of Textile SUPPLEMENTARY INFORMATION: Authority: ACTION: Issuing a directive to the Agreements, for the following countries, Section 204 of the Agriculture Act of Commissioner, Bureau of Customs and covering cotton, wool, man-made fiber, silk 1956, as amended; Executive Order Border Protection canceling visa blend and non-cotton vegetable fiber textile 11651, as amended. requirements for WTO member and textile products subject to the Agreement countries. on Textiles and Clothing, effective for goods Background exported from those countries on and after January 1, 2005: Bahrain, Bangladesh, Brazil, The textile and apparel safeguard DATES: Effective Date: January 1, 2005. Cambodia, China, Colombia, Costa Rica, provision of the Accession Agreement FOR FURTHER INFORMATION CONTACT: Dominican Republic, Egypt, El Salvador, Fiji, provides for the United States and other Philip J. Martello, Director, Trade and Guatemala, Haiti, Hong Kong, Hungary, members of the World Trade Data Division, Office of Textiles and India, Indonesia, Jamaica, Japan, Korea, Organization that believe imports of
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Chinese origin textile and apparel directly competitive U.S. product or are Reference and Assistance Center Help products are, due to market disruption, likely to increase demand for further Desk, Suite 800M, USA Trade threatening to impede the orderly imports from China; (2) whether exports Information Center, Ronald Reagan development of trade in these products of Chinese-origin knit fabric to the Building, 1300 Pennsylvania Avenue, to request consultations with China United States are likely to increase NW., Washington, DC, (202) 482–3433. with a view to easing or avoiding the substantially and imminently (due to The Committee will make a disruption. Pursuant to this provision, if existing unused production capacity, to determination within 60 calendar days the United States requests consultations capacity that can easily be shifted from of the close of the comment period as with China, it must, at the time of the the production of other products to the to whether the United States will request, provide China with a detailed production of knit fabric, or to an request consultations with China. If the factual statement showing ‘‘(1) the imminent and substantial increase in Committee is unable to make a existence or threat of market disruption; production capacity or investment in determination within 60 calendar days, and (2) the role of products of Chinese production capacity), taking into it will cause to be published a notice in origin in that disruption.’’ Beginning on account the availability of other markets the Federal Register, including the date the date that it receives such a request, to absorb any additional exports; (3) by which it will make a determination. China must restrict its shipments to the whether Chinese-origin knit fabrics that If the Committee makes a negative United States to a level no greater than are presently sold in the Chinese market determination, it will cause this 7.5 percent (6 percent for wool product or in third-country markets will be determination and the reasons therefore categories) above the amount entered diverted to the U.S. market in the to be published in the Federal Register. during the first 12 months of the most imminent future (for example, due to If the Committee makes an affirmative recent 14 months preceding the request. more favorable pricing in the U.S. determination that imports of Chinese- If exports from China exceed that market or to existing or imminent origin knit fabric threaten to disrupt the amount, the United States may enforce import restraints into third country U.S. market, the United States will the restriction. markets); (4) the level and the extent of request consultations with China with a The Committee has published any recent change in inventories of knit view to easing or avoiding the procedures (the Procedures) it follows fabric in China or in U.S. bonded disruption. in considering requests for Accession warehouses; (5) whether conditions of Agreement textile and apparel safeguard the domestic industry of the like or James C. Leonard, III, actions (68 FR 27787, May 21, 2003; 68 directly competitive product Chairman, Committee for the Implementation FR 49440, August 18, 2003), including demonstrate that market disruption is of Textile Agreements. the information that must be included likely (as may be evident from any [FR Doc. E4–3712 Filed 12–16–04; 8:45 am] in such requests in order for the anticipated factory closures or decline BILLING CODE 3510–DR–P Committee to consider them. in investment in the production of knit On November 19, 2004, the fabric, and whether actual or anticipated Requestors asked the Committee to imports of Chinese-origin knit fabric are reapply an Accession Agreement textile likely to affect the development and DEPARTMENT OF DEFENSE and apparel safeguard action on imports production efforts of the U.S. knit fabric from China of knit fabric (Category 222) industry; and (6) whether U.S. Office of the Secretary on the grounds that an anticipated managers, retailers, purchasers, increase in imports of knit fabric after importers, or other market participants Modification to Announcement of December 23, 2004, threatens to disrupt have recognized Chinese producers of Intent To Initiate the Process To the U.S. market for knit fabric. The knit fabric as potential suppliers (for Remove Aeronautical Information request is available at http:// example, through pre-qualification From Public Sale and Distribution otexa.ita.doc.gov/Safeguard_intro.htm. procedures or framework agreements). AGENCY: National Geospatial- In light of the considerations set forth in Comments may be submitted by any Intelligence Agency (NGA), Department the Procedures, the Committee has interested person. Comments must be of Defense. determined that the Requestors have received no later than January 18, 2005. provided the information necessary for Interested persons are invited to submit ACTION: Notice modification. the Committee to consider the request. ten copies of such comments to the SUMMARY: After initial feedback from the The Committee is soliciting public Chairman, Committee for the public on NGA’s notice in Federal comments on the request, in particular Implementation of Textile Agreements, Register Volume 69, Number 222, pages with regard to whether there is a threat Room 3001A, U.S. Department of 67546–67547, NGA has determined that of disruption to the U.S. market for knit Commerce, 14th and Constitution fabric and, if so, the role of Chinese- Avenue NW., Washington, DC 20230. a period of public comment will benefit origin knit fabric in that disruption. To The Committee will protect any the final decision on this policy issue. this end, the Committee seeks relevant business confidential information that is Therefore, NGA is inviting public information addressing factors such as marked business confidential from comment on the proposed action to the following, which may be relevant in disclosure to the full extent permitted withdraw aeronautical data and the particular circumstances of this by law. To the extent that business products from public distribution. The case, involving a product under a quota confidential information is provided, period of comment will be open from that will expire on December 23, 2004: two copies of a non-confidential version the date of this Register until 30 June (1) Whether imports of knit fabric from must also be provided in which 2005. NGA will consider all comments China are entering, or are expected to business confidential information is when making the final decision to go enter, the United States at prices that are summarized or, if necessary, deleted. forward with this proposed action, in substantially below prices of the like or Comments received, with the exception part, in whole, or not at all. directly competitive U.S. product, and of information marked ‘‘business DATES: Period of Public Comment: whether those imports are likely to have confidential’’, will be available for December 17, 2004 to 30 June 2005. a significant depressing or suppressing inspection between Monday-Friday, Proposed Implementation Date of final effect on domestic prices of the like or 8:30 a.m. and 5:30 p.m. in the Trade Decision: 1 October 2005.
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ADDRESSES: To make sure your The Department’s Freedom of The Department’s regulations contain comments and related material are Information Reading Room (formerly provisions allowing a person to seek a entered only once in the docket please Room 1E–190 at the Forrestal Building) waiver from the test procedure submit them by only one of the is no longer housing rulemaking requirements for covered consumer following means: materials. products and electric motors. These (1) By e-mail to [email protected]; or provisions are set forth in 10 CFR FOR FURTHER INFORMATION CONTACT: (2) By mail to: National Geospatial- 430.27 and 10 CFR 431.29. The waiver Mohammed Khan, U.S. Department of Intelligence Agency, Mail Stop D–111, provisions allow the Assistant Secretary Energy, Building Technologies Program, Attn: Public Release of Aeronautical for Energy Efficiency and Renewable Mail Stop EE–2J, Forrestal Building, Products, 4600 Sangamore Road, Energy (Assistant Secretary) to waive 1000 Independence Avenue, SW., Bethesda, MD 20816–5003. temporarily the test procedure for a Washington, DC 20585–0121, (202) 586– particular basic model when a petitioner Dated: December 13, 2004. 7892; e-mail: shows that the basic model contains one Jeannette Owings-Ballard, [email protected]; or or more design characteristics that OSD Federal Register Liaison Officer, Francine Pinto, Esq., U.S. Department of prevent testing according to the Department of Defense. Energy, Office of General Counsel, Mail prescribed test procedures, or when the [FR Doc. 04–27645 Filed 12–16–04; 8:45 am] Stop GC–72, Forrestal Building, 1000 prescribed test procedures may evaluate BILLING CODE 5001–06–M Independence Avenue, SW., the basic model in a manner so Washington, DC 20585–0103, (202) 586– unrepresentative of its true energy 9507; e-mail: consumption as to provide materially DEPARTMENT OF ENERGY [email protected]. inaccurate comparative data. (10 CFR Office of Energy Efficiency and SUPPLEMENTARY INFORMATION: In 430.27(l)) Waivers generally remain in Renewable Energy accordance with 10 CFR part 430.27(l), effect until final test procedure notice is hereby given of the issuance of amendments become effective, thereby Energy Conservation Program for the Decision and Order as set out below. resolving the problem that is the subject Consumer Products: Decision and In the Decision and Order, American is of the waiver. Order Denying the American Water denied a Waiver from the Department’s On January 24, 2002, the Department Heater Company Petition for Waiver of Uniform Test Method for Measuring the published a notice in the Federal the DOE Test Procedure for Measuring Energy Consumption of Water Heaters Register, 67 FR 3449, (hereafter referred the Energy Consumption of Water for its water heaters that have automatic, to as the January 2002 notice) regarding Heaters (Case No. WH–010) adaptive, electronic controls. a Petition for Waiver and Application AGENCY: Office of Energy Efficiency and Issued in Washington, DC, on December for Interim Waiver received on April 26, Renewable Energy, Department of 14, 2004. 2001, from American. In its Petition for Energy. David K. Garman, Waiver, American sought modifications to the DOE test procedure to ACTION: Decision and Order; Denial of Assistant Secretary, Energy Efficiency and Petition for Waiver. Renewable Energy. accommodate its electric water heaters which are fitted with an automatic, SUMMARY: Today’s notice denies the Decision and Order adaptive, electronic control device said American Water Heater Company’s In the matter of: American Water to automatically raise or lower the (American) Petition for Waiver from the Heater Company (American). (Case No. thermostat set point based on patterns of U.S. Department of Energy (DOE or the WH–010) use. American has developed the Department) Uniform Test Method for automatic, adaptive, electronic control Measuring the Energy Consumption of Background in an effort to reduce standby energy Water Heaters. American claims the Title III of the Energy Policy and losses. American stated that by lowering DOE test method does not allow for an Conservation Act (EPCA) sets forth a the temperature of the water within the accurate representation of the true variety of provisions concerning energy water heater tank, standby losses can be energy consumption of its residential efficiency. Part B of Title III (42 U.S.C. reduced. American requested four water heaters fitted with an automatic, 6291–6309) provides for the ‘‘Energy modifications to the current test adaptive, control, a microprocessor- Conservation Program for Consumer procedure: based control system. The Department Products other than Automobiles’’ (1) The inclusion of a qualification does not believe the current test which requires, among other things, that test on the automatic, adaptive, procedure misrepresents the true energy DOE prescribe standardized test electronic control to ensure that it consumption of the American water procedures to measure the energy automatically changes the set point; heater equipped with an automatic, consumption of certain consumer (2) Change the specified nominal adaptive, electronic control. products, including water heaters. The average tank temperature to the lowest ADDRESSES: To read background relevant DOE test procedure for stable temperature achieved by the documents or comments received, go to purposes of today’s decision and order automatic, adaptive, electronic control the U.S. Department of Energy, Forrestal is ‘‘Uniform Test Method for Measuring from the existing constant set point of Building, Room 1J–018 (Resource Room the Energy Consumption of Water 135° F; of the Building Technologies Program), Heaters’’ (current test procedure). The (3) Change the volume of water of 1000 Independence Avenue, SW., current test procedure is set forth in 10 each draw to provide an equal amount Washington, DC, (202) 586–9127, CFR part 430, subpart B, Appendix E. It of thermal energy as would be provided between 9 a.m. and 4 p.m., Monday prescribes a method for characterizing in each draw of the current procedure; through Friday, except Federal holidays. the energy requirements of all types of and Please call Ms. Brenda Edwards-Jones at water heaters and yields model-specific (4) Change the equations to compute the above telephone number for energy efficiency information that can the energy factor by replacing the 135° additional information regarding aid consumers in their purchasing F nominal temperature with Tsu, the visiting the Resource Room. Please note: decisions. maximum average tank temperature
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observed after the recovery following representative hot water temperatures temperature is inappropriate because the sixth draw. for various uses: there is no guarantee that in actual In the January 2002 notice, the Hand washing: 105° F practice, the water heater would operate Department denied an Interim Waiver to Shaving: 115° F at such a level. Rheem and AET both American from the current test Showers and tubs: 110° F stated that the proposed test procedure procedure and solicited comments, data Residential dish washing and uses a best-case scenario and not and information as to whether to grant laundry: 140° F. necessarily thermostat set-points the Petition for Waiver as well as None of the temperatures listed above representative of actual field use. comments on testing water heaters with for residential applications are less than American did not respond to DOE’s electronic controls. 105° F. Allowing American to draw request for data that characterizes water usage in family dwellings. American Assertions and Determinations water until the water temperature ° ° also did not provide evidence that, in The Department believes American’s becomes 25 F cooler than the 115 F start temperature, as prescribed in its actual field use, its water heaters would proposed test procedure is not store water at the lowest stable modified test proposal, would result in appropriate because of certain issues temperature said to be achievable by the 90° F water from the water heater. Water which would arise from modifying the automatic, adaptive, electronic control. at 90° F is below the recommended hot current test procedure as American The data American provided to DOE on water temperatures such as those requests. DOE received comments from February 14, 2002, in response to the indicated in the ASHRAE Applications the American Gas Association (AGA), notice of January 2002, however, shows Handbook. American, Applied Energy Technology the performance of one water heater With respect to American’s proposal (AET), Rheem Manufacturing Company from each of four classes under a for a modified start-temperature of 115° (Rheem), and Southern California Gas regulated draw pattern that artificially F, AET recommended setting a lower Company (SCG) in response to the moves the thermostat set point up or limit on the temperature of the outlet Petition for Waiver and the January, down. The regulated draws are not water as a criterion for stopping a draw 2002, notice. This section provides a necessarily representative of typical during the first-hour rating test as discussion of the comments and places household water demand patterns and the issues into context. opposed to using a fixed temperature thus not necessarily representative of The current test procedure stipulates drop. Again, considering the ASHRAE typical set-point temperatures and hot a first-hour rating test that provides for recommended temperatures, DOE water temperatures. In its comments, an estimate of the amount of ‘‘hot’’ believes that a lower limit should not be ° American provides additional water (water having a temperature above less than 105 F. Allowing American to laboratory-derived data for four of the ° 110 F) a storage water heater can perform a first-hour rating test at a lower six basic models for which it seeks a supply within one hour. In its limit of 105° F with a start temperature ° ° waiver. American states that this data comments, AET and Rheem expressed of 115 F (or even 120 F) could result shows that the lowest, stable attainable concern that American did not propose in unequal delivery capacity ratings temperatures range from 112° F to 118° a modified first-hour rating. In response compared to water heaters that are F, and the temperature difference results to a similar DOE statement in the unequipped with an automatic, from the control algorithm and January 2002 notice, American provided adaptive, electronic control since start hardware. Again however, American results from first-hour rating tests for temperatures would be different and the did not provide data that shows how the three of its basic models. These models lower limit could be different. lowest stable temperature achievable in were tested in accordance with the The Department also believes that the a laboratory represents or correlates to current test procedure except with the effectiveness of the automatic, adaptive, what may be typical of household use starting water heater tank temperature electronic control in establishing and in the field. set at the lowest stable temperature, maintaining a lowest stable temperature Rheem also points out that the approximately 115° F instead of 135° F under typical use patterns is automatic, adaptive, electronic control set point requirement. American unpredictable. In the January 2002 has (four) different modes which can be asserted that this change to the first- notice, DOE stated that ‘‘American did manually selected. In addition to the hour rating test is appropriate because not provide any test data that DOE ‘‘Energy Saver Cycle’’ mode, which American advises consumers to use a could use to determine that a lower American terms the control mode thermostat set point of 120° F. American thermostat set point would result from responsible for adjusting the stored further argued that its modified first- typical household use * * *.’’ water temperature based on the actual hour rating test accurately reflects the American responded by reiterating that hot water usage pattern, the automatic, typical hourly consumption of actual the laboratory test data of three of its adaptive, electronic control includes a consumer use since 115° F is the typical water heater models showed that the manually selectable constant temperature of tanks used by automatic, adaptive, electronic control temperature mode, a manually consumers. would reach a lowest stable selectable vacation mode, and a DOE believes the first-hour rating test, temperature. While American’s data manually selectable low-temperature as proposed by American in its response demonstrates that three of its water mode. Because these modes can be to the January 2002 notice, is heaters equipped with automatic, manually selected, the Department unacceptable because drawing hot water adaptive, electronic controls can create recognizes that consumers may select a until a 25° F drop is observed at the tank a lowest stable temperature in a mode other than the Energy Saver Cycle outlet from an initial temperature of laboratory setting, American did not mode. The potential energy savings, 115° F would result in water that could provide data that shows that the lowest which American claims are achievable be too cold for residential use. For stable temperature achievable in a in the Energy Saver Cycle mode, would example, Chapter 49 of the 2003 laboratory represents, or correlates to, not be attained if the user selects an American Society of Heating, what may be typical of household use operating mode other than the Energy Refrigerating and Air-Conditioning in the field. AET, Rheem, and SCG Saver Cycle (e.g., a fixed set point of Engineers (ASHRAE) Applications argued that American’s request to test 135° F). The Department believes Handbook lists the following the water heater at the lowest stable American has not demonstrated how the
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consumer would set, and keep, the DOE believes the current test equipped with its automatic, adaptive, automatic, adaptive, electronic control procedure provides for an equitable test electronic control at a set-point in the Energy Saver Cycle mode. metric for all applicable water heaters temperature lower than that specified in The automatic, adaptive, electronic and an evaluation method that is the current test procedure would create control’s ability to automatically raise representative of the true energy an inequitable test standard. the set-point temperature when hot consumption of the water heater in DOE believes American has not water demand is high poses a concern. question under the demand conditions provided sufficient evidence to establish It is conceivable that in actual field use, specified. The current 24-hour- that the current test procedure the new automatic, adaptive, electronic simulated-use test procedure simulates misrepresents the true energy control could result in higher energy the consumption of hot water; the test consumption of its water heater consumption since it is capable of begins with six draws at one-hour equipped with its new automatic, upwardly adjusting the set point, intervals. The total amount of water adaptive, electronic control. American making the water temperature inside the removed from the tank in these equally has also not substantiated its claim that tank higher than that ordinarily sized draws is 64.3 gallons at a flow rate a water heater with its automatic, observed or higher than the set-point of three gallons per minute. After the adaptive, electronic control will save temperature prescribed in the current draw portion of the test, the water energy compared to a water heater with test procedure. Operating at set-point heater sits idly until a period of time a conventional control when responding temperatures higher than those totaling 24 hours has elapsed. The to the same demand conditions. prescribed in the current test procedure temperature of the water in the tank is American has responded to DOE’s would result in energy consumption set at 135° F, and the temperature of the request for more data by providing higher than that observed using the inlet water is set at 58° F. The current results on three tanks in a laboratory current test procedure. test procedure says 135° F is the needed setting in which a series of short draws Another reason the DOE believes water temperature; American’s demonstrated an automatic decrease in American’s proposed modifications are proposed test would not allow the water tank temperature, and longer draws not suitable is that the modifications heater to yield a water temperature of show an automatic increase in could allow for inequitable testing. 135° F. American suggests a modified temperature. While the test results show AGA, AET, Rheem, and SCG believe procedure, which is to deliver the that the automatic, adaptive, electronic American’s proposed test procedure is identical amount of thermal energy by control can decrease the temperature of biased towards the specific control increasing the amount of water drawn the water inside the tank to a minimally device American has introduced. AGA, from the tank at a lower temperature. acceptable temperature, as defined by AET, and SCG commented that This modification however, would not the automatic, adaptive, electronic providing an exemption for such a emulate a demand condition requiring control, the results fail to demonstrate control offers an unfair advantage to 135° F water. Granting American’s energy savings at temperatures matching electric water heaters, as most gas water waiver request would result in an those prescribed in the current DOE test heaters do not incorporate an electricity inequitable metric as some water heaters procedure. Moreover, American has not source whereby an automatic controller would need to satisfy demands at 135° provided data that justify a deviation such as American’s can be powered and F while others would only need to from the prescribed temperatures. A operated. Rheem and AET indicated satisfy demands at much lower demonstration of performance under an that the proposed waiver would artificial draw pattern that is designed temperatures. discount other types of controls. For to force the water heater to its optimum example, conventional thermostats are A control device such as American’s control settings, which do not also a type of control, but these simple can provide an automated means for correspond to set-point temperatures and low-cost devices would not be changing the temperature of the water prescribed in the current DOE test covered under American’s proposed stored in a water heater. However, DOE procedure and which are too low to rating procedure. American proposes a does not believe that a waiver for a yield water that is sufficiently warm for particular test that would qualify its lower set-point-temperature is recommended household uses, is control, but other controllers that work warranted on the basis of automation. insufficient to establish that testing in in a slightly different manner would not American argues that its automatic, accordance with the current test qualify under American’s test, despite adaptive, electronic control will procedure would result in materially being capable of forcing the tank automatically cause the water heater to inaccurate comparative energy temperature to a lower level. SCG stated operate at a lower temperature than is consumption data. The energy that, because of the large variability in required in the current test procedure consumption measured under the hot water use, the purpose of the current and thus, should be tested at a lower current test procedure would not be test procedure is to provide a level temperature. While water heaters with misrepresentative of American’s water playing field while not necessarily conventional controllers can be heaters’ true energy consumption under duplicating actual household energy manually set to operate at a lower the demand conditions assumed in the consumption. Besides its assertion of temperature than is specified in the test procedure. Accordingly, the posing an unfair advantage, AET also DOE test procedure and thus achieve petitioner has not met the criterion in 10 stated that, since American indicates no the same effect as American’s automatic, CFR 430.27 (l) that a waiver be granted lowest stable temperature, the proposed adaptive, electronic control, the current if the prescribed test procedure modification would result in a test test procedure does not allow for a evaluates the basic model in a manner procedure potentially subject to abuse manual change. American’s control so unrepresentative of its true energy by allowing water heaters to be tested at feature does not change the fundamental consumption as to provide materially temperatures that would not be operation of its water heater or create a inaccurate comparative data. considered useful. The proposed test unique operating regime that is Furthermore, the Department believes procedure is potentially subject to unattainable by water heaters equipped American’s automatic, adaptive, further abuse since American has not with conventional controls. For these electronic control does not preclude specified thermostat cut-out and cut-in reasons also, DOE believes that allowing testing in accordance with the current temperatures. American to test its water heater test procedure, and no other aspect of
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the water heater’s design precludes 1003–001, ER04–1007–000 and ER04– DEPARTMENT OF ENERGY testing it in accordance with the 1007–001. Federal Energy Regulatory provisions in the current test procedure. AEPSC states that copies of the filing Commission The Department has determined that the were served on parties on the official relevant basic models of water heaters service list in the above-captioned that are the subject of the application for [Docket No. RP99–301–124] proceedings as well as on AEP waiver can be tested under the current transmission customers and the state test procedure. AGA agrees with this ANR Pipeline Company; Notice of conclusion; it stated that there is utility regulatory commissions in the Compliance Filing nothing that prevents American’s water states in which the AEP operating companies do business. December 10, 2004. heater from being tested under the Take notice that on December 6, 2004, current test procedure, and that test Any person desiring to intervene or to ANR Pipeline Company (ANR) tendered results would accurately predict energy protest this filing must file in for filing an updated Primary Route consumption under the behavioral accordance with Rules 211 and 214 of Exhibit for Contract No. 107876 between assumptions inherent in the test the Commission’s Rules of Practice and ANR and Wisconsin Gas. procedure (namely, the amount of water Procedure (18 CFR 385.211, 385.214). ANR states that the exhibit is being required and the temperature at which Protests will be considered by the filed in compliance with the that water is needed). Accordingly, the Commission in determining the Commission’s November 30, 2004 order petitioner has not met the criterion in 10 appropriate action to be taken, but will accepting ANR’s amended negotiated CFR 430.27 (l) that the basic model not serve to make protestants parties to rate agreements for filing. ANR requests contains one or more design the proceeding. Any person wishing to that the Commission accept and characteristics that prevent testing become a party must file a notice of approve the subject negotiated rate according to the prescribed test intervention or motion to intervene, as agreement amendments to be effective procedures. appropriate. Such notices, motions, or November 1, 2004. Conclusion protests must be filed on or before the Any person desiring to protest this filing must file in accordance with Rule Following a careful consideration of comment date. Anyone filing a motion 211 of the Commission’s Rules of all the material that was submitted by to intervene or protest must serve a copy Practice and Procedure (18 CFR American, the comments received, and of that document on the Applicant. On 385.211). Protests to this filing will be based on the criteria for granting a or before the comment date, it is not considered by the Commission in waiver as provided in 10 CFR 430.27 (l), necessary to serve motions to intervene determining the appropriate action to be it is ordered that no waiver will be or protests on persons other than the taken, but will not serve to make granted. Applicant. protestants parties to the proceeding. Issued in Washington, DC, on December The Commission encourages Such protests must be filed in 14, 2004. electronic submission of protests and accordance with the provisions of David K. Garman, interventions in lieu of paper using the section 154.210 of the Commission’s Assistant Secretary, Energy Efficiency and ‘‘eFiling’’ link at http://www.ferc.gov. regulations (18 CFR 154.210). Anyone Renewable Energy. Persons unable to file electronically filing a protest must serve a copy of that [FR Doc. 04–27643 Filed 12–16–04; 8:45 am] should submit an original and 14 copies document on all the parties to the BILLING CODE 6450–01–P of the protest or intervention to the proceeding. Federal Energy Regulatory Commission, The Commission encourages 888 First Street, NE., Washington, DC electronic submission of protests in lieu DEPARTMENT OF ENERGY 20426. of paper using the ‘‘eFiling’’ link at This filing is accessible on-line at http://www.ferc.gov. Persons unable to Federal Energy Regulatory file electronically should submit an Commission http://www.ferc.gov, using the ‘‘eLibrary’’ link and is available for original and 14 copies of the protest to the Federal Energy Regulatory [Docket No. ER04–1003–002 and ER04– review in the Commission’s Public Commission, 888 First Street, NE., 1007–002] Reference Room in Washington, DC. Washington, DC 20426. There is an ‘‘eSubscription’’ link on the American Electric Power Service This filing is accessible on-line at Web site that enables subscribers to Corporation; Notice of Compliance http://www.ferc.gov, using the Filing receive email notification when a ‘‘eLibrary’’ link and is available for document is added to a subscribed review in the Commission’s Public December 9, 2004. docket(s). For assistance with any FERC Reference Room in Washington, DC. Take notice that on December 2, 2004, Online service, please e-mail There is an ‘‘eSubscription’’ link on the American Electric Power Service [email protected], or call Web site that enables subscribers to Corporation (AEPSC) on behalf of the (866) 208–3676 (toll free). For TTY, call receive e-mail notification when a AEP operating companies in its East (202) 502–8659. document is added to a subscribed Zone, (namely Appalachian Power Comment Date: 5 p.m. Eastern Time docket(s). For assistance with any FERC Company, Columbus Southern Power on December 23, 2004. Online service, please e-mail Company, Indiana Michigan Power [email protected], or call Company, Kentucky Power Company, Magalie R. Salas, (866) 208–3676 (toll free). For TTY, call Kingsport Power Company, Ohio Power Secretary. (202) 502–8659. Company, and Wheeling Power [FR Doc. E4–3685 Filed 12–16–04; 8:45 am] Company) submitted a compliance Magalie R. Salas, BILLING CODE 6717–01–P filing pursuant to the Commission letter Secretary. order issued November 1, 2004 in [FR Doc. E4–3688 Filed 12–16–04; 8:45 am] Docket Nos. ER04–1003–000, ER04– BILLING CODE 6717–01–P
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DEPARTMENT OF ENERGY (866) 208–3676 (toll free). For TTY, call This filing is accessible on-line at (202) 502–8659. http://www.ferc.gov, using the Federal Energy Regulatory ‘‘eLibrary’’ link and is available for Magalie R. Salas, Commission review in the Commission’s Public Secretary. Reference Room in Washington, DC. [FR Doc. E4–3698 Filed 12–16–04; 8:45 am] [Docket Nos. CP01–76–011 and CP01–77– There is an ‘‘eSubscription’’ link on the 011] BILLING CODE 6717–01–P Web site that enables subscribers to receive e-mail notification when a Dominion Cove Point LNG, LP; Notice document is added to a subscribed DEPARTMENT OF ENERGY of Compliance Filing docket(s). For assistance with any FERC Online service, please e-mail December 10, 2004. Federal Energy Regulatory Commission [email protected], or call Take notice that on December 2, 2004, (866) 208–3676 (toll free). For TTY, call Dominion Cove Point LNG, LP (Cove [Docket No. EC05–25–000] (202) 502–8659. Point) tendered for filing as part of its Comment Date: 5 p.m. Eastern Time El Paso Merchant Energy—Petroleum on December 29, 2004. FERC Gas Tariff, Original Volume No. 1, Company, Rensselaer Plant Holdco, Second Sub. Fourth Revised Sheet No. L.L.C., Bison Power LLC, Notice of Magalie R. Salas, 8, to become effective December 1, 2004. Filing Secretary. Cove Point states that this sheet is [FR Doc. E4–3686 Filed 12–16–04; 8:45 am] December 9, 2004. being filed in compliance with the BILLING CODE 6717–01–P Commission’s letter order regarding Take notice that on December 8, 2004, ‘‘Tariff Sheets Implementing Settlement El Paso Merchant Energy—Petroleum Rates’’ issued November 30, 2004, in the Company (EPMEPC), Rensselaer Plant DEPARTMENT OF ENERGY above captioned dockets. Cove Point Holdco, L.L.C. (RPH) and Bison Power states that the tariff sheet sets forth the LLC (Bison Power) (jointly, Applicants) Federal Energy Regulatory filed with the Commission an LTD–2 rate as established in the October Commission application pursuant to section 203 of 2002 Settlement and an LTD–1 the Federal Power Act requesting that Authorized Overrun rate unchanged [Docket No. RP05–4–001] the Commission authorize the sale and from the previously approved level. transfer of the membership interests in Maritimes & Northeast Pipeline, L.L.C.; Any person desiring to protest this RPH from EPMEPC to Bison Power. Notice of Compliance Filing filing must file in accordance with Rule EPMEPC states that the Applicants 211 of the Commission’s Rules of requested privileged treatment for December 10, 2004. Practice and Procedure (18 CFR certain exhibits pursuant to 18 CFR 33.9 Take notice that on November 8, 385.211). Protests to this filing will be and 388.112. EPMEPC also states that 2004, Maritimes & Northeast Pipeline, considered by the Commission in the Applicants also requested expedited L.L.C., (Maritimes) tendered for filing its determining the appropriate action to be consideration of this Application. compliance filing in response to the taken, but will not serve to make Any person desiring to intervene or to Commission’s order issued on October protestants parties to the proceeding. protest this filing must file in 29, 2004, concerning the issues raised Such protests must be filed in accordance with Rules 211 and 214 of by Mobil Natural Gas Inc. in its protest accordance with the provisions of the Commission’s Rules of Practice and dated October 1, 2004. section 154.210 of the Commission’s Procedure (18 CFR 385.211, 385.214). Maritimes states that copies of the regulations (18 CFR 154.210). Anyone Protests will be considered by the filing have been served upon each filing a protest must serve a copy of that Commission in determining the person designated on the official service document on all the parties to the appropriate action to be taken, but will listed. proceeding. not serve to make protestants parties to Any person desiring to protest this filing must file in accordance with Rule The Commission encourages the proceeding. Any person wishing to 211 of the Commission’s Rules of electronic submission of protests in lieu become a party must file a notice of intervention or motion to intervene, as Practice and Procedure (18 CFR of paper using the ‘‘eFiling’’ link at appropriate. Such notices, motions, or 385.211). Protests to this filing will be http://www.ferc.gov. Persons unable to protests must be filed on or before the considered by the Commission in file electronically should submit an comment date. Anyone filing a motion determining the appropriate action to be original and 14 copies of the protest to to intervene or protest must serve a copy taken, but will not serve to make the Federal Energy Regulatory of that document on the Applicant. On protestants parties to the proceeding. Commission, 888 First Street, NE., or before the comment date, it is not Such protests must be filed in Washington, DC 20426. necessary to serve motions to intervene accordance with the provisions of This filing is accessible on-line at or protests on persons other than the Section 154.210 of the Commission’s http://www.ferc.gov, using the Applicant. regulations (18 CFR 154.210). Anyone ‘‘eLibrary’’ link and is available for The Commission encourages filing a protest must serve a copy of that review in the Commission’s Public electronic submission of protests and document on all the parties to the Reference Room in Washington, DC. interventions in lieu of paper using the proceeding. There is an ‘‘eSubscription’’ link on the ‘‘eFiling’’ link at http://www.ferc.gov. The Commission encourages Web site that enables subscribers to Persons unable to file electronically electronic submission of protests in lieu receive e-mail notification when a should submit an original and 14 copies of paper using the ‘‘eFiling’’ link at document is added to a subscribed of the protest or intervention to the http://www.ferc.gov. Persons unable to docket(s). For assistance with any FERC Federal Energy Regulatory Commission, file electronically should submit an Online service, please e-mail 888 First Street, NE., Washington, DC original and 14 copies of the protest to [email protected], or call 20426. the Federal Energy Regulatory
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Commission, 888 First Street, NE., document on the Applicant. Anyone States Lands, managed by Forest Service Washington, DC 20426. filing an intervention or protest on or and Bureau of Land Management. This filing is accessible on-line at before the intervention or protest date g. Filed Pursuant to: 18 CFR part 5 of http://www.ferc.gov, using the need not serve motions to intervene or the Commission’s regulations. ‘‘eLibrary’’ link and is available for protests on persons other than the h. Pacific Gas and Electric Company review in the Commission’s Public Applicant. Contact: Randal Livingston, Senior Reference Room in Washington, DC. The Commission encourages Director, Power Generation, Pacific Gas There is an ‘‘eSubscription’’ link on the electronic submission of protests and and Electric Company, 245 Market, Web site that enables subscribers to interventions in lieu of paper using the Room 1103 (N11E), P.O. Box 770000, receive e-mail notification when a ‘‘eFiling’’ link at http://www.ferc.gov. San Francisco, CA 94177; (415) 973– document is added to a subscribed Persons unable to file electronically 6950, facsimile (415) 973–5323. docket(s). For assistance with any FERC should submit an original and 14 copies i. FERC Contact: Susan O’Brien at Online service, please e-mail of the protest or intervention to the (202) 502–8449 or e-mail at [email protected], or call Federal Energy Regulatory Commission, [email protected]. (866) 208–3676 (toll free). For TTY, call 888 First Street, NE., Washington, DC j. We are asking Federal, State, local, (202) 502–8659. 20426. and tribal agencies with jurisdiction This filing is accessible on-line at and/or special expertise with respect to Magalie R. Salas, http://www.ferc.gov, using the environmental issues to cooperate with Secretary. ‘‘eLibrary’’ link and is available for us in the preparation of an [FR Doc. E4–3696 Filed 12–16–04; 8:45 am] review in the Commission’s Public environmental document for this BILLING CODE 6717–01–P Reference Room in Washington, DC. project. Agencies wanting cooperating There is an ‘‘eSubscription’’ link on the agency status should follow the filing web site that enables subscribers to instructions described in paragraph p DEPARTMENT OF ENERGY receive email notification when a below. document is added to a subscribed k. With this notice, we are initiating Federal Energy Regulatory informal consultation with: (1) The U.S. Commission docket(s). For assistance with any FERC Online service, please e-mail Fish and Wildlife Service and/or NOAA [Docket No. RP96–272–055] [email protected], or call Fisheries under section 7 of the (866) 208–3676 (toll free). For TTY, call Endangered Species Act and the joint Northern Natural Gas Company; Notice (202) 502–8659. agency regulations thereunder at 50 CFR of Negotiated Rate 402, and (2) the State Historic Magalie R. Salas, Preservation Officer, as required by December 10, 2004. Secretary. section 106, National Historical Take notice that on December 7, 2004, [FR Doc. E4–3697 Filed 12–16–04; 8:45 am] Preservation Act, and the implementing Northern Natural Gas Company BILLING CODE 6717–01–P regulations of the Advisory Council on (Northern) tendered for filing to become Historic Preservation at 36 CFR 800.2. part of its FERC Gas Tariff, Fifth Revised l. We are designating Pacific Gas and Volume No. 1, 36 Revised Sheet No. 66, DEPARTMENT OF ENERGY Electric Company as the Commission’s to be effective on December 7, 2004. non-Federal representative for carrying Northern states that the above sheet is Federal Energy Regulatory out informal consultation pursuant to being filed to implement specific Commission section 7 of the Endangered Species Act negotiated rate transactions with [Project No. 803–068—California] and Section 106 of the National Historic Merrick’s Inc. in accordance with the Preservation Act. Commission’s Policy Statement on Pacific Gas and Electric Company; m. Pacific Gas and Electric Company Alternatives to Traditional Cost-of- Notice of Intent To File License filed a Pre-Application Document (PAD) Service Ratemaking for Natural Gas Application, Filing of Pre-Application including a proposed process plan and Pipelines. Document (Pad), Solicitation of schedule with the Commission, Northern further states that copies of Comments on the Pad and Scoping pursuant to 18 CFR 5.6 of the the filing have been mailed to each of Document, Solicitation of Study Commission’s regulations on October 4, its customers and interested State Requests, and Commencement of 2004. Commissions. Proceeding n. A copy of the PAD is available for Any person desiring to intervene or to review at the Commission in the Public protest this filing must file in December 3, 2004. Reference Room or may be viewed on accordance with Rules 211 and 214 of a. Type of Filing: Notice of intent to the Commission’s Web site http:// the Commission’s Rules of Practice and file a license application and pre-filing www.ferc.gov using the ‘‘eLibrary’’ link. Procedure (18 CFR 385.211 and document (PAD) under the Enter the docket number, excluding the 385.214). Protests will be considered by Commission’s integrated licensing last three digits in the docket number the Commission in determining the process and commencing licensing field to access the document. For appropriate action to be taken, but will proceeding. assistance, contact FERC Online not serve to make protestants parties to b. Project No.: 803–068. Support at the proceeding. Any person wishing to c. Date Filed: October 4, 2004. [email protected] or toll become a party must file a notice of d. Filed By: Pacific Gas and Electric free at (866) 208–3676, or for TTY, (202) intervention or motion to intervene, as Company. 502–8659. A copy is also available for appropriate. Such notices, motions, or e. Project Name: DeSabla-Centerville inspection and reproduction at the protests must be filed in accordance Hydroelectric Project. address in paragraph h. with the provisions of section 154.210 f. Location: On the Butte Creek and Register online at http:// of the Commission’s regulations (18 CFR West Branch Feather River, in Butte www.ferc.gov/esubscribenow.htm to be 154.210). Anyone filing an intervention County, California. The project occupies notified via e-mail of new filings and or protest must serve a copy of that approximately 178 acres of United issuances related to this or other
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Commission projects. For assistance, 385.2001(a)(1)(iii) and the instructions file electronically should submit an contact FERC Online Support. on the Commission’s Web site http:// original and 14 copies of the protest to o. We issued the Scoping Document 1 www.ferc.gov under the ‘‘e-filing’’ link. the Federal Energy Regulatory (SD1) for this project on October 20, q. At this time, the Commission Commission, 888 First Street, NE., 2004, which describes the alternatives intends to prepare a draft and final Washington, DC. 20426. and issues to be addressed in our Environmental Assessment for the This filing is accessible on-line at environmental document. Scoping project in accordance with the National http://www.ferc.gov, using the meetings for this project were Environmental Policy Act. ‘‘eLibrary’’ link and is available for conducted on November 17–18, 2004, in r. Pacific Gas and Electric Company review in the Commission’s Public Chico, CA. Copies of the SD1 and intends to hold a multi-day study plan Reference Room in Washington, DC. transcripts 1 of the scoping meetings are workshop for all interested individuals There is an ‘‘eSubscription’’ link on the available for review at the Commission and entities in Chico, CA on January 6– Web site that enables subscribers to in the Public Reference Room or may be 7 and 10–11, 2005 (location and times receive e-mail notification when a viewed on the Commission’s Web site to be determined). Please contact Susan document is added to a subscribed http://www.ferc.gov using the O’Brien, in paragraph i above, if you docket(s). For assistance with any FERC ‘‘eLibrary’’ link as described in item n need further information. Online service, please e-mail above. SD1 was also mailed to all [email protected], or call Magalie R. Salas, entities on the Commission’s mailing (866) 208–3676 (toll free). For TTY, call list for this project and was available at Secretary. (202) 502–8659. the Commission’s scoping meetings. [FR Doc. E4–3684 Filed 12–16–04; 8:45 am] Protest Date: 5 p.m. Eastern Time on Commission staff will prepare a Scoping BILLING CODE 6717–01–P December 16, 2004. Document 2 (SD2) by March 18, 2005. The SD2 will include a complete list of Magalie R. Salas, issues identified through the scoping DEPARTMENT OF ENERGY Secretary. [FR Doc. E4–3691 Filed 12–16–04; 8:45 am] process and a revised process plan and Federal Energy Regulatory BILLING CODE 6717–01–P schedule. Commission p. With this notice, we are soliciting comments on the PAD and SD1, as well [Docket No. CP99–579–003] as study requests. All comments on the DEPARTMENT OF ENERGY PAD and SD1, study requests, requests Southern LNG Inc.; Notice of Revenue for cooperating agency status, and all Report Federal Energy Regulatory Commission communications to and from December 10, 2004. Commission staff related to the merits of Take notice that on December 1, 2004, [Docket No. RP05–108–000] the potential application must be filed Southern LNG Inc., (SLNG) tendered for with the Commission (original and eight filing its cost and revenue information TransColorado Gas Transmission copies) at the following address: The associated with the base reservation and Company; Notice of Tariff Filing Secretary, Federal Energy Regulatory commodity rates for terminal service at Commission, 888 First Street, NE., December 10, 2004. Elba Island. Washington, DC 20426. All filings with Take notice that on December 1, 2004, Southern states that the information the Commission must include on the TransColorado Gas Transmission follows the Commission’s regulations at first page, the project name (DeSabla- Company (TransColorado) tendered for 18 CFR 154.313 and is based on the Centerville Hydroelectric Project) and filing as part of its FERC Gas Tariff, First twelve months ending on July 31, 2004, number (P–803–068), and bear the Revised Volume No. 1, the following as adjusted. Southern states that it is not heading ‘‘Comments on Pre-Application tariff sheets, to be effective January 1, changing SLNG’s current base rates, Document,’’ ‘‘Study Requests,’’ 2005: which were approved as recently as ‘‘Comments on Scoping Document 1,’’ October 2002 in Docket No. RP02–129. Second Revised Sheet No. 247B; Original ‘‘Request for Cooperating Agency Southern states that the filing is being Sheet No. 247B.01; Second Revised Sheet Status,’’ or ‘‘Communications to and made in compliance with the No. 247C. from Commission Staff.’’ Any Commission order issued on March 16, TransColorado proposes to revise individual or entity interested in 2000 in this docket. section 12.9(d) of its FERC Gas Tariff in submitting study requests, commenting Any person desiring to protest this order to add two receipt and delivery on the PAD or SD1, and any agency filing must file in accordance with Rule combinations to the currently effective requesting cooperating status must do so 211 of the Commission’s Rules of list of receipt and delivery point by February 1, 2005. Practice and Procedure (18 CFR combinations which do not consume All study requests must address the 385.211). Protests to this filing will be fuel and which are only to be assessed seven criteria, pursuant to 18 CFR 5.9(b) considered by the Commission in the lost or gained and unaccounted-for of the Commission’s regulations. Comments on the PAD and SD1, determining the appropriate action to be component of TransColorado’s fuel gas study requests, requests for cooperating taken, but will not serve to make reimbursement percentage (FGRP). agency status, and other permissible protestants parties to the proceeding. TransColorado further states that it also forms of communications with the Such protests must be filed on or before seeks to define more specifically the Commission may be filed electronically the date as indicated below. Anyone transactions which are to be assessed via the Internet in lieu of paper. The filing a protest must serve a copy of that only the lost or gained and Commission strongly encourages document on all the parties to the unaccounted-for component of electronic filings. See 18 CFR proceeding. TransColorado’s FGRP. The Commission encourages TransColorado states that a copy of 1 Transcripts of the scoping meetings will be electronic submission of protests in lieu this filing, with the Critical Energy made available to the public through the of paper using the ‘‘eFiling’’ link at Infrastructure Information removed, has Commission’s Web site after December 7, 2004. http://www.ferc.gov. Persons unable to been served upon TransColorado’s
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customers and affected state DEPARTMENT OF ENERGY protests must be filed in on or before the commissions. date as indicated below. Anyone filing Federal Energy Regulatory Any person desiring to intervene or to an intervention or protest must serve a Commission protest this filing must file in copy of that document on the Applicant. accordance with Rules 211 and 214 of [Docket No. CP05–33–000] Anyone filing an intervention or protest on or before the intervention or protest the Commission’s Rules of Practice and Transcontinental Gas Pipe Line date need not serve motions to intervene Procedure (18 CFR 385.211 and Corporation; Notice of Application for or protests on persons other than the 385.214). Protests will be considered by Abandonment Applicant. the Commission in determining the The Commission encourages appropriate action to be taken, but will December 10, 2004. electronic submission of protests and not serve to make protestants parties to Take notice that on November 30, interventions in lieu of paper using the the proceeding. Any person wishing to 2004, Transcontinental Gas Pipe Line ‘‘eFiling’’ link at http://www.ferc.gov. become a party must file a notice of Corporation (Transco), tendered for Persons unable to file electronically intervention or motion to intervene, as filing an application under section 7 of should submit an original and 14 copies appropriate. Such notices, motions, or the Natural Gas Act to abandon a of the protest or intervention to the protests must be filed in accordance portion of the firm transportation Federal Energy Regulatory Commission, with the provisions of Section 154.210 service provided to Eastern Shore 888 First Street, NE., Washington, DC of the Commission’s regulations (18 CFR Natural Gas Company (Eastern Shore) 20426. 154.210). Anyone filing an intervention under Transco’s Rate Schedule FT. This filing is accessible on-line at In its application, Transco states that or protest must serve a copy of that http://www.ferc.gov, using the it currently renders for Eastern Shore, ‘‘eLibrary’’ link and is available for document on the Applicant. Anyone under that certain service agreement review in the Commission’s Public filing an intervention or protest on or dated February 1, 1992, firm Reference Room in Washington, DC. before the intervention or protest date transportation service under Transco’s need not serve motions to intervene or Rate Schedule FT. Transco states that There is an ‘‘eSubscription’’ link on the protests on persons other than the the service agreement sets forth the Web site that enables subscribers to Applicant. terms and conditions under which receive e-mail notification when a Transco provides firm transportation of document is added to a subscribed The Commission encourages docket(s). For assistance with any FERC electronic submission of protests and 2,989 Dt of gas per day for Eastern Shore. Transco also states that although Online service, please e-mail interventions in lieu of paper using the [email protected], or call ‘‘eFiling’’ link at http://www.ferc.gov. the firm transportation service is being rendered by Transco pursuant to (866) 208–3676 (toll free). For TTY, call Persons unable to file electronically (202) 502–8659. should submit an original and 14 copies Transco’s blanket certificate authorization under Part 284(G) of the Intervention and Protest Date: 5 p.m. of the protest or intervention to the Commission’s regulations, Transco Eastern Time on January 3, 2005. Federal Energy Regulatory Commission, requires specific Section 7(b) Magalie R. Salas, 888 First Street, NE., Washington, DC abandonment authorization (instead of 20426. Secretary. simply abandoning the service [FR Doc. E4–3690 Filed 12–16–04; 8:45 am] This filing is accessible on-line at automatically under section 284.221(d) http://www.ferc.gov, using the of the regulations) because the subject BILLING CODE 6717–01–P ‘‘eLibrary’’ link and is available for FT service for Eastern Shore was review in the Commission’s Public previously converted from firm sales DEPARTMENT OF ENERGY Reference Room in Washington, DC. service to firm transportation service There is an ‘‘eSubscription’’ link on the under Transco’s Rate Schedule FT Federal Energy Regulatory Web site that enables subscribers to pursuant to Transco’s revised Commission receive e-mail notification when a Stipulation and Agreement in Docket document is added to a subscribed Nos. RP88–68, et al., and that settlement [Docket No. RP05–118–000] docket(s). For assistance with any FERC provides that pre-granted abandonment Online service, please e-mail shall not apply to such conversions (as Transcontinental Gas Pipe Line [email protected], or call further described in Article IV of the Corporation; Notice of Proposed Service Agreement). Transco indicates (866) 208–3676 (toll free). For TTY, call Changes in FERC Gas Tariff that it is more fully explained in the (202) 502–8659. application, Transco proposes to December 10, 2004. Magalie R. Salas, abandon 174 Dt/day of firm Take notice that on December 7, 2004, Secretary. transportation service to Eastern Shore. Transcontinental Gas Pipe Line Any person desiring to intervene or to Corporation (Transco) tendered for [FR Doc. E4–3694 Filed 12–16–04; 8:45 am] protest this filing must file in filing as part of its FERC Gas Tariff, BILLING CODE 6717–01–P accordance with Rules 211 and 214 of Third Revised Volume No. 1, Fourth the Commission’s Rules of Practice and Revised Sheet No. 311 and Fifth Revised Procedure (18 CFR 385.211 and Sheet No. 326 to become effective 385.214). Protests will be considered by January 6, 2005. the Commission in determining the Transco states that the purpose of the appropriate action to be taken, but will instant filing is to update the Delivery not serve to make protestants parties to Point Entitlement (DPE) tariff sheets for the proceeding. Any person wishing to Delmarva Power & Light Company and become a party must file a notice of UGI Utilities Inc. in accordance with the intervention or motion to intervene, as provisions of Section 19.1(f) and 19.2(f) appropriate. Such notices, motions, or of the General Terms and Conditions of
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Transco’s Third Revised Volume No. 1 DEPARTMENT OF ENERGY (866) 208–3676 (toll free). For TTY, call Tariff. (202) 502–8659. Federal Energy Regulatory Any person desiring to intervene or to Comment Date: December 20, 2004. Commission protest this filing must file in Magalie R. Salas, accordance with Rules 211 and 214 of [Docket No. EL05–39–000] Secretary. the Commission’s Rules of Practice and [FR Doc. E4–3692 Filed 12–16–04; 8:45 am] Procedure (18 CFR 385.211 and ANP Funding I, LLC, Complainant v. BILLING CODE 6717–01–P 385.214). Protests will be considered by ISO New England Inc. and New the Commission in determining the England Power Pool, Respondents; appropriate action to be taken, but will Notice of Complaint DEPARTMENT OF ENERGY not serve to make protestants parties to December 10, 2004. the proceeding. Any person wishing to Federal Energy Regulatory Take notice that on December 6, 2004, Commission become a party must file a notice of ANP Funding I, LLC (ANP) filed a intervention or motion to intervene, as Complaint against ISO New England, [Docket No. ER04–14–004, et al.] appropriate. Such notices, motions, or Inc., (ISO–NE) and the New England protests must be filed in accordance The Detroit Edison Company, et al.; Power Pool (NEPOOL). ANP requests Electric Rate and Corporate Filings with the provisions of section 154.210 that the Commission: (1) Order of the Commission’s regulations (18 CFR Respondents to continue to abide by December 7, 2004. 154.210). Anyone filing an intervention Market Rule 1 in its entirety unless and The following filings have been made or protest must serve a copy of that until the Commission issues an order with the Commission. The filings are document on the Applicant. Anyone authorizing an amendment of the listed in ascending order within each filing an intervention or protest on or NEPOOL tariff; and (2) direct docket classification. before the intervention or protest date Respondents to withdraw OP20 and the need not serve motions to intervene or revisions to OP5 that were approved by 1. The Detroit Edison Company protests on persons other than the NEPOOL on November 5, 2004 on the [Docket Nos. ER04–14–004 and EL04–29– Applicant. basis that they are inconsistent with 004] The Commission encourages Market Rule 1. Take notice that on December 2, 2004, electronic submission of protests and Any person desiring to intervene or to The Detroit Edison Company tendered protest this filing must file in interventions in lieu of paper using the for filing with the Commission a revised accordance with Rules 211 and 214 of ancillary services tariff in accordance ‘‘eFiling’’ link at http://www.ferc.gov. the Commission’s Rules of Practice and with the terms of an uncontested Persons unable to file electronically Procedure (18 CFR 385.211 and settlement agreement approved by the should submit an original and 14 copies 385.214). Protests will be considered by Commission’s order issued November of the protest or intervention to the the Commission in determining the 23, 2004, in Docket Nos. ER04–14–000 Federal Energy Regulatory Commission, appropriate action to be taken, but will and EL04–29–000. 888 First Street, NE., Washington, DC not serve to make protestants parties to Comment Date: 5 p.m. eastern time on 20426. the proceeding. Any person wishing to December 23, 2004. become a party must file a notice of This filing is accessible on-line at 2. The Dayton Power and Light intervention or motion to intervene, as http://www.ferc.gov, using the Company ‘‘eLibrary’’ link and is available for appropriate. The Respondent’s answer review in the Commission’s Public and all interventions, or protests must [Docket No. ER04–1256–002] Reference Room in Washington, DC. be filed on or before the comment date. Take notice that on December 1, 2004, There is an ‘‘eSubscription’’ link on the The Respondent’s answer, motions to The Dayton Power and Light Company Web site that enables subscribers to intervene, and protests must be served (Dayton) submitted an amended filing of receive email notification when a on the Complainants. a local delivery service agreement document is added to a subscribed The Commission encourages between Dayton and Buckeye Power, docket(s). For assistance with any FERC electronic submission of protests and Inc. interventions in lieu of paper using the Online service, please e-mail Dayton states that a copy of this ‘‘eFiling’’ link at http://www.ferc.gov. agreement has been served on Buckeye [email protected], or call Persons unable to file electronically and the Public Utilities Commission of (866) 208–3676 (toll free). For TTY, call should submit an original and 14 copies Ohio. (202) 502–8659. of the protest or intervention to the Comment Date: 5 p.m. eastern time on Magalie R. Salas, Federal Energy Regulatory Commission, December 22, 2004. 888 First Street, NE., Washington, DC Secretary. 3. Midwest Independent Transmission 20426. [FR Doc. E4–3695 Filed 12–16–04; 8:45 am] System Operator, Inc., Midwest This filing is accessible on-line at Independent Transmission System BILLING CODE 6717–01–P http://www.ferc.gov, using the Operator, Inc., Midwest Independent ‘‘eLibrary’’ link and is available for Transmission System Operator, Inc., review in the Commission’s Public Ameren Services Co., et al. Reference Room in Washington, DC. There is an ‘‘eSubscription’’ link on the [Docket Nos. ER05–6–005, EL04–135–007 Web site that enables subscribers to EL02–111–024, EL03–212–021] receive e-mail notification when a Take notice that on December 1, 2004, document is added to a subscribed the Midwest Independent Transmission docket(s). For assistance with any FERC System Operator, Inc. (Midwest ISO) Online service, please e-mail and Midwest ISO Transmission Owners [email protected], or call (collectively Applicants) jointly
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submitted for filing revisions to Midwest ISO members, member Exelon Generation Company, LLC, and proposed Schedules 21 and 22 of the representatives of transmission Public Service Electric and Gas Midwest ISO open access transmission customers, and the Midwest ISO Company, Atlantic City Electric tariff submitted on November 24, 2004, advisory committee participants, as well Company, Delmarva Power & Light in compliance with the Commission’s as all state commissions within the Company, and PECO Energy Company. November 18, 2004, order in Docket affected regions. In addition, the PJM requests an effective date of Nos. ER05–6, EL04–135, EL02–111, and Midwest ISO states that this filing will November 2, 2004. EL03–212, Midwest Indep. be posted on the Midwest ISO’s Web PJM states that copies of this filing Transmission Sys. Operator, Inc., 109 site at http://www.midwestiso.org under were served upon the parties to the FERC ¶ 61,168 (2004). the heading ‘‘Filings to FERC.’’ agreement and the state regulatory Applicants state that copies of the Comment Date: 5 p.m. eastern time on commissions within the PJM region. filing were served on parties on the December 23, 2004. Comment Date: 5 p.m. eastern time on official service list. December 23, 2004. 6. American Electric Power Service Comment Date: 5 p.m. eastern time on Corporation 9. AVEC Holdings, LLC December 22, 2004. [Docket No. ER05–286–000] [Docket No. ER05–291–000] 4. JPMorgan Chase Bank, N.A. Take notice that on December 2, 2004, Take notice that on December 2, 2004, [Docket No. ER05–283–000] American Electric Power Service AVEC Holdings, LLC (AVEC) tendered Take notice that on December 2, 2004, Corporation (AEPSC), submitted for for filing a Notice of Cancellation JPMorgan Chase Bank, N.A. (JPMCB) filing Notices of Cancellation for a pursuant to 18 CFR 35.15 in order to petitioned the Commission for Network Service Agreement and a reflect the cancellation of its market- acceptance of JPMCB Rate Schedule Network Operating Agreement between based rate tariff, designated as FERC FERC No. 1; the granting of certain Oklahoma Municipal Power Authority Electric Tariff, Original Volume No. 1, blanket approvals, including the (OMPA) and Central and South West originally accepted for filing in Docket No. ER98–3565–000. authority to sell electricity at market- Services, Inc., designated agent for Comment Date: 5 p.m. eastern time on based rates; and the waiver of certain Central Power and Light Company, December 23, 2004. Commission regulations. JPMCB states Public Service Company of Oklahoma, that it intends to engage in wholesale Southwestern Electric Power Company, 10. California Independent System electric energy and capacity transactions and West Texas Utilities Company. Operator Corporation as a marketer and a broker. JPMCB also AEPSC requests an effective date of [Docket No. ER05–292–000] January 1, 2005. states that it is not in the business of Take notice that on December 2, 2004, AEPSC states that it has served copies generating or transmitting electric the California Independent System of the filing on OMPA and the Public power. JPMCB further states that Operator Corporation (ISO), tendered for Utility Commission of Texas, the JPMorgan is a leading international filing an unexecuted meter service banking and financial institution formed Oklahoma Corporation Commission, the agreement for ISO metered entities under the laws of the State of Delaware Louisiana Public Service Commission (MSA), an unexecuted participating with its principal executive offices in and the Arkansas Public Service generator agreement (PGA), and an New York, New York. JPMCB indicates Commission. unexecuted Utility Distribution Comment Date: 5 p.m. eastern time on that in transactions where JPMCB sells Company Operating Agreement (UDC December 23, 2004. electric power, it proposes to make such Operating Agreement) between the ISO sales on rates, terms and conditions to 7. Granite Ridge Energy, LLC and the City of Corona, California be mutually agreed to with the (Corona) for acceptance by the [Docket No. ER05–287–000] purchasing party. Commission. The ISO requests Comment Date: 5 p.m. eastern time on Take notice that on December 2, 2004, privileged treatment, pursuant to 18 December 23, 2004. Granite Ridge Energy, LLC (Granite CFR 388.112, with regard to portions of Ridge Energy) filed (1) a Notice of 5. Midwest Independent Transmission the UDC Operating Agreement. The ISO Succession to notify the Commission System Operator, Inc. states that the non-privileged elements that, as a result of a name change, of this filing have been served on [Docket No. ER05–285–000] Granite Ridge Energy has succeeded to Corona and the California Public Take notice that on December 2, 2004, the FERC rate schedule of AES Utilities Commission. The ISO is the Midwest Independent Transmission Londonderry, L.L.C., and (2) requesting waiver of the 60-day notice System Operator, Inc., (Midwest ISO) amendments to the rate schedule to requirement to allow the MSA and PGA and FirstEnergy Service Company, on reflect the fact that Granite Ridge Energy to be made effective on December 15, behalf of American Transmission is no longer affiliated with Indianapolis 2004, and the UDC Operating Systems, Incorporated (ATSI) Power and Light Company, or any other Agreement to be made effective on (collectively, Applicants), filed with the electric utility with a franchised service January 1, 2005. Commission proposed revisions to the territory. Granite Ridge Energy requests Comment Date: 5 pm eastern time on Midwest ISO open access transmission an effective date of November 2, 2004. December 23, 2004. tariff (OATT), which revisions are Comment Date: 5 p.m. eastern time on intended to provide for ATSI’s December 23, 2004. Standard Paragraph transmission rates to be derived 8. PJM Interconnection, L.L.C. Any person desiring to intervene or to pursuant to the rate formulae in protest this filing must file in Attachment O to the Midwest ISO [Docket No. ER05–290–000] accordance with Rules 211 and 214 of OATT. The Midwest ISO requests an Take notice that on December 2, 2004, the Commission’s Rules of Practice and effective date of February 1, 2005. PJM Interconnection, L.L.C. (PJM), Procedure (18 CFR 385.211 and The Midwest ISO states that it has submitted for filing an executed 385.214). Protests will be considered by served a copy of this filing, including all interconnection service agreement (ISA) the Commission in determining the attachments, electronically upon all among PJM, PSEG Nuclear LLC, and appropriate action to be taken, but will
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not serve to make protestants parties to Comment Date: 5 p.m. eastern time on with its principal executive offices in the proceeding. Any person wishing to December 23, 2004. New York, New York. JPMCB indicates become a party must file a notice of that in transactions where JPMCB sells 2. The Dayton Power and Light intervention or motion to intervene, as electric power, it proposes to make such Company appropriate. Such notices, motions, or sales on rates, terms and conditions to protests must be filed on or before the [Docket No. ER04–1256–002] be mutually agreed to with the comment date. Anyone filing a motion Take notice that on December 1, 2004, purchasing party. to intervene or protest must serve a copy the Dayton Power and Light Company Comment Date: 5 p.m. eastern time on of that document on the Applicant and (Dayton) submitted an amended filing of December 23, 2004. all parties to this proceeding. a local delivery service agreement 5. Midwest Independent Transmission The Commission encourages between Dayton and Buckeye Power, System Operator, Inc. electronic submission of protests and Inc. interventions in lieu of paper using the Dayton states that a copy of this [Docket No. ER05–285–000] ‘‘eFiling’’ link at http://www.ferc.gov. agreement has been served on Buckeye Take notice that on December 2, 2004, Persons unable to file electronically and the Public Utilities Commission of the Midwest Independent Transmission should submit an original and 14 copies Ohio. System Operator, Inc., (Midwest ISO) of the protest or intervention to the Comment Date: 5 p.m. eastern time on and FirstEnergy Service Company, on Federal Energy Regulatory Commission, December 22, 2004. behalf of American Transmission 888 First Street, NE., Washington, DC Systems, Incorporated (ATSI) 3. Midwest Independent Transmission 20426. (collectively, Applicants), filed with the System Operator, Inc., Midwest This filing is accessible on-line at Commission proposed revisions to the Independent Transmission System http://www.ferc.gov, using the Midwest ISO open access transmission Operator, Inc., Midwest Independent ‘‘eLibrary’’ link and is available for tariff (OATT), which revisions are Transmission System Operator, Inc., review in the Commission’s Public intended to provide for ATSI’s Ameren Services Co., et al. Reference Room in Washington, DC. transmission rates to be derived There is an ‘‘eSubscription’’ link on the [Docket Nos. ER05–6–005, EL04–135–007, pursuant to the rate formulae in Web site that enables subscribers to EL02–111–024, and EL03–212–021] Attachment O to the Midwest ISO receive e-mail notification when a Take notice that on December 1, 2004, OATT. The Midwest ISO requests an document is added to a subscribed the Midwest Independent Transmission effective date of February 1, 2005. docket(s). For assistance with any FERC System Operator, Inc. (Midwest ISO) The Midwest ISO states that it has Online service, please e-mail and Midwest ISO Transmission Owners served a copy of this filing, including all [email protected], or call (collectively Applicants) jointly attachments, electronically upon all (866) 208–3676 (toll free). For TTY, call submitted for filing revisions to Midwest ISO members, member (202) 502–8659. proposed Schedules 21 and 22 of the representatives of transmission Magalie R. Salas, Midwest ISO open access transmission customers, and the Midwest ISO tariff submitted on November 24, 2004, advisory committee participants, as well Secretary. in compliance with the Commission’s as all state commissions within the [FR Doc. E4–3680 Filed 12–16–04; 8:45 am] November 18, 2004, order in Docket affected regions. In addition, the BILLING CODE 6717–01–P Nos. ER05–6, EL04–135, EL02–111, and Midwest ISO states that this filing will EL03–212, Midwest Indep. be posted on the Midwest ISO’s Web Transmission Sys. Operator, Inc., 109 site at http://www.midwestiso.org under DEPARTMENT OF ENERGY FERC ¶ 61,168 (2004). the heading ‘‘Filings to FERC.’’ Federal Energy Regulatory Applicants state that copies of the Comment Date: 5 p.m. eastern time on Commission filing were served on parties on the December 23, 2004. official service list. 6. American Electric Power Service Comment Date: 5 p.m. eastern time on Corporation [Docket No. ER04–14–004, et al.] December 22, 2004. [Docket No. ER05–286–000] The Detroit Edison Company, et al.; 4. JPMorgan Chase Bank, N.A. Electric Rate and Corporate Filings Take notice that on December 2, 2004, [Docket No. ER05–283–000] American Electric Power Service December 7, 2004. Take notice that on December 2, 2004, Corporation (AEPSC), submitted for The following filings have been made JPMorgan Chase Bank, N.A. (JPMCB) filing Notices of Cancellation for a with the Commission. The filings are petitioned the Commission for Network Service Agreement and a listed in ascending order within each acceptance of JPMCB Rate Schedule Network Operating Agreement between docket classification. FERC No. 1; the granting of certain Oklahoma Municipal Power Authority blanket approvals, including the (OMPA) and Central and South West 1. The Detroit Edison Company authority to sell electricity at market- Services, Inc., designated agent for [Docket Nos. ER04–14–004 and EL04–29– based rates; and the waiver of certain Central Power and Light Company, 004] Commission regulations. JPMCB states Public Service Company of Oklahoma, Take notice that on December 2, 2004, that it intends to engage in wholesale Southwestern Electric Power Company, The Detroit Edison Company tendered electric energy and capacity transactions and West Texas Utilities Company. for filing with the Commission a revised as a marketer and a broker. JPMCB also AEPSC requests an effective date of ancillary services tariff in accordance states that it is not in the business of January 1, 2005. with the terms of an uncontested generating or transmitting electric AEPSC states that it has served copies settlement agreement approved by the power. JPMCB further states that of the filing on OMPA and the Public Commission’s order issued November JPMorgan is a leading international Utility Commission of Texas, the 23, 2004, in Docket Nos. ER04–14–000 banking and financial institution formed Oklahoma Corporation Commission, the and EL04–29–000. under the laws of the State of Delaware Louisiana Public Service Commission
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and the Arkansas Public Service unexecuted Utility Distribution DEPARTMENT OF ENERGY Commission. Company Operating Agreement (UDC Comment Date: 5 p.m. eastern time on Operating Agreement) between the ISO Federal Energy Regulatory December 23, 2004. and the City of Corona, California Commission 7. Granite Ridge Energy, LLC (Corona) for acceptance by the Commission. The ISO requests [Docket No. EC05–24–000, et al.] [Docket No. ER05–287–000] privileged treatment, pursuant to 18 Take notice that on December 2, 2004, CFR 388.112, with regard to portions of Virginia Electric and Power Company, Granite Ridge Energy, LLC (Granite the UDC Operating Agreement. The ISO et al.; Electric Rate and Corporate Ridge Energy) filed (1) a Notice of states that the non-privileged elements Filings Succession to notify the Commission of this filing have been served on that, as a result of a name change, Corona and the California Public December 8, 2004. Granite Ridge Energy has succeeded to Utilities Commission. The ISO is The following filings have been made the FERC rate schedule of AES requesting waiver of the 60-day notice with the Commission. The filings are Londonderry, L.L.C., and (2) requirement to allow the MSA and PGA listed in ascending order within each amendments to the rate schedule to to be made effective on December 15, docket classification. reflect the fact that Granite Ridge Energy 2004, and the UDC Operating is no longer affiliated with Indianapolis Agreement to be made effective on 1. Virginia Electric and Power Power and Light Company, or any other January 1, 2005. Company electric utility with a franchised service Comment Date: 5 p.m. eastern time on territory. Granite Ridge Energy requests December 23, 2004. [Docket No. EC05–24–000] an effective date of November 2, 2004. Standard Paragraph Take notice that, on December 3, Comment Date: 5 p.m. eastern time on 2004, Virginia Electric and Power December 23, 2004. Any person desiring to intervene or to Company (Dominion Virginia Power) protest this filing must file in filed, pursuant to section 203 of the 8. PJM Interconnection, L.L.C. accordance with Rules 211 and 214 of Federal Power Act (FPA), 16 U.S.C. [Docket No. ER05–290–000] the Commission’s Rules of Practice and 824b, and part 33 of the Commission’s Take notice that on December 2, 2004, Procedure (18 CFR 385.211 and regulations, 18 CFR part 33 (2004), an PJM Interconnection, L.L.C. (PJM), 385.214). Protests will be considered by submitted for filing an executed the Commission in determining the application requesting Commission interconnection service agreement (ISA) appropriate action to be taken, but will authorization for: (1) The proposed among PJM, PSEG Nuclear LLC, and not serve to make protestants parties to transfer to Dominion Virginia Power, a Exelon Generation Company, LLC, and the proceeding. Any person wishing to subsidiary of Dominion Resources, Inc. Public Service Electric and Gas become a party must file a notice of (DRI), of all of the assets of Panda- Company, Atlantic City Electric intervention or motion to intervene, as Rosemary, L.P. (Panda-Rosemary); and Company, Delmarva Power & Light appropriate. Such notices, motions, or (2) Dominion Virginia Power’s Company, and PECO Energy Company. protests must be filed on or before the ownership of an approximately 181.5 PJM requests an effective date of comment date. Anyone filing a motion MW generating facility and its November 2, 2004. to intervene or protest must serve a copy appurtenant transmission facilities PJM states that copies of this filing of that document on the Applicant and located in Roanoke Rapids, North were served upon the parties to the all parties to this proceeding. Carolina resulting from the proposed agreement and the state regulatory The Commission encourages acquisition. The Applicant requests that commissions within the PJM region. electronic submission of protests and the Commission act on this application Comment Date: 5 p.m. eastern time on interventions in lieu of paper using the within approximately sixty days or by December 23, 2004. ‘‘eFiling’’ link at http://www.ferc.gov. February 2, 2005. 9. AVEC Holdings, LLC Persons unable to file electronically should submit an original and 14 copies Dominion Virginia Power states that [Docket No. ER05–291–000] of the protest or intervention to the copies of the filing were served upon Take notice that on December 2, 2004, Federal Energy Regulatory Commission, the parties to the transaction, Dominion AVEC Holdings, LLC (AVEC) tendered 888 First Street, NE., Washington, DC Virginia Power’s wholesale for filing a Notice of Cancellation 20426. requirements customers, the Virginia pursuant to 18 CFR 35.15 in order to This filing is accessible on-line at State Corporation Commission and the reflect the cancellation of its market- http://www.ferc.gov, using the North Carolina Utilities Commission. based rate tariff, designated as FERC ‘‘eLibrary’’ link and is available for Comment Date: 5 p.m. Eastern Time Electric Tariff, Original Volume No. 1, review in the Commission’s Public on December 27, 2004. originally accepted for filing in Docket Reference Room in Washington, DC. No. ER98–3565–000. There is an ‘‘eSubscription’’ link on the 2. Rensselaer Plant Holdco, L.L.C. Comment Date: 5 p.m. eastern time on Web site that enables subscribers to [Docket No. EG05–22–000] December 23, 2004. receive e-mail notification when a 10. California Independent System document is added to a subscribed On December 6, 2004, Rensselaer Operator Corporation docket(s). For assistance with any FERC Plant Holdco, L.L.C. (RPH), a Delaware Online service, please e-mail limited liability company with its [Docket No. ER05–292–000] [email protected], or call principal place of business in Houston, Take notice that on December 2, 2004, (866) 208–3676 (toll free). For TTY, call Texas, filed with the Federal Energy the California Independent System (202) 502–8659. Regulatory Commission an application Operator Corporation (ISO), tendered for for determination of exempt wholesale filing an unexecuted meter service Magalie R. Salas, agreement for ISO metered entities Secretary. (MSA), an unexecuted participating [FR Doc. E4–3687 Filed 12–16–04; 8:45 am] generator agreement (PGA), and an BILLING CODE 6717–01–P
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generator status pursuant to part 365 of 5. South Point Energy Center, LLC; Iowa; and (2) Electric Service the Commission’s regulations. Gilroy Energy Center, LLC; MEP Agreement under FERC Electric Tariff RPH states that it owns and operates Pleasant Hill, LLC; Acadia Power Original Volume No. 6, Service an electric generating facility with a Partners, LLC Agreement No. 2, dated November 1, 1976 (Callender Agreement) between total generating capacity of 79.4 MW [Docket Nos. ER01–2887–003, ER01–2688– MidAmerican and the City of Callender, natural gas-fired, combined cycle power 005, ER99–2858–005, ER02–1406–004] Iowa. MidAmerican requests an plant located in Rensselaer, New York. Take notice that on December 3, 2004, effective date of December 31, 2004. RPH further states that the facility is South Point Energy Center, LLC, Gilroy Energy Center, LLC, Acadia Power Comment Date: 5 p.m. Eastern Time interconnected to the Niagara Mohawk on December 27, 2004. Power Corporation transmission grid. Partners, LLC, and MEP Pleasant Hill, LLC submitted a joint triennial updated 8. American Transmission Company Comment Date: 5 p.m. Eastern Time market power analysis. LLC on December 27, 2004. Comment Date: 5 p.m. Eastern Time [Docket No. ER05–262–000] 3. Oklahoma Municipal Power on December 27, 2004. Take notice that on November 24, Authority v. American Electric Power 6. Pacific Gas and Electric Company 2004, American Transmission Company Service Co. as agent for the AEP [Docket No. ER04–828–001] LLC (ATCLLC) tendered for filing a Operating Companies Take notice that on December 3, 2004, Distribution-Transmission [Docket No. EL05–38–000] Pacific Gas and Electric Company Interconnection Agreement between ATCLLC and Prairie du Sac Utilities. Take notice that on December 6, 2004, (PG&E) submitted a compliance filing pursuant to the Commission’s July 7, ATCLLC requests an effective date of the Oklahoma Municipal Power November 1, 2004. Authority (OMPA) filed a complaint 2004 Order in the above-referenced proceeding. PG&E states that the subject Comment Date: 5 p.m. Eastern Time against the American Electric Power filing included an amended agreement on December 15, 2004. Service Company as agent for the AEP entitled Special Facilities Agreement for 9. Xcel Energy Services Inc. Operating Companies (collectively, the Newark Substation Circuit Breaker AEP) seeking fast track processing and 460 and 470 Replacement (SFA) [Docket No. ER05–293–000] an order directing AEP to file an between PG&E and the City of Santa Take notice that on December 3, 2004, unexecuted service agreement for the Clara, California, doing business as Xcel Energy Services Inc. (Xcel Energy network transmission service OMPA has Silicon Valley Power (SVP) Services), on behalf of itself and the requested as necessary to facilitate (collectively, Parties). PG&E also states Xcel Energy Operating Companies, OMPA’s contracted for acquisition of an that the amendments to the SFA are in namely Northern States Power increased ownership interest in compliance with the Commission’s July Company, Northern States Power Oklaunion Unit No. 1. In particular, 7, 2004 Order in this proceeding and Company (Wisconsin), Public Service OMPA states that it seeks Commission reflect the outcome of negotiations Company of Colorado, and determination as to what additional between the Parties to resolve issues Southwestern Public Service Company, transmission facilities are necessary to regarding the apportionment of the submitted the first amended joint provide the requested service and monthly cost of ownership charge and operating agreement among Northern resolve the issues between OMPA and the costs associated with the design and States Power Company, Northern States AEP pertaining to the allocation of costs installation of the special facilities. Power Company (Wisconsin), Public for and the proper size of the PG&E further states that the Commission Service Company of Colorado, interconnection between ERCOT and originally accepted and suspended the Southwestern Public Service Company, SPP. SFA for filing on July 7, 2004 in FERC and Xcel Energy Services Inc. as agent. Docket No. ER04–828–000 and Xcel Energy Services requests an OMPA states that a copy of the designated the SFA as Service effective date of February 1, 2005. Complaint has been served on Agreement No. 60 under FERC PG&E Xcel Energy Services states that Respondent, AEP by electronic and first Electric Tariff, Sixth Revised Volume copies of the filing were served upon class mail. No. 5. the Xcel Energy Services’ jurisdictional Comment Date: December 28, 2004. PG&E states that copies of this filing customers, and the applicable state were served upon SVP, the California public utility commissions. 4. AES Londonderry, L.L.C. Independent System Operator, and the Comment Date: 5 p.m. Eastern Time [Docket No. ER00–1147–003] California Public Utilities Commission on December 27, 2004. (CPUC). 10. PacifiCorp Take notice that on December 2, 2004, Comment Date: 5 p.m. Eastern Time Granite Ridge Energy, LLC (Granite on December 27, 2004. [Docket No. ER05–296–000] Ridge Energy) filed with the Take notice that on, December 6, 7. MidAmerican Energy Company Commission a notice of change in status 2004, PacifiCorp tendered for filing in in connection with the transfer of the [Docket No. ER05–8–001] accordance with 18 CFR 35 of the ownership interests that were held by Take notice that on December 3, 2004, Commission’s Rules and Regulations a AES Londonderry Holdings, L.L.C. in MidAmerican Energy Company Notice of Cancellation of the May 26, the Project Company, which owns and (MidAmerican) tendered for filing 1960 agreement between PacifiCorp and operates a 720-megawatt gas-fired Amended Notices of Cancellation of: (1) the Milton-Freewater Electric merchant power plant located in Electric Service Agreement under FERC Department providing an emergency Londonderry, New Hampshire, to the Electric Tariff Original Volume No. 6, interconnection and standby electric creditors of the Project Company. Service Agreement No. 1, filed by service (PacifiCorp’s Rate Schedule MidAmerican, dated November 16, 1976 FERC No. 52). Comment Date: 5 p.m. Eastern Time (Buffalo Agreement) between PacifiCorp states that copies of this on December 23, 2004. MidAmerican and the City of Buffalo, filing were supplied to the Public Utility
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Commission of Oregon, the Washington Utilities and Transportation Pinelawn Power states that a copy of Utilities and Transportation Commission, and Central Lincoln the filing has been served on the Long Commission, and Milton-Freewater People’s Utility District. Island Power Authority, the entity with Electric Department. Comment Date: 5 p.m. Eastern Time which Pinelawn Power LLC has Comment Date: 5 p.m. Eastern Time on December 27, 2004. contracted for the sale of the entire on December 27, 2004. 14. PacifiCorp output of its facility. 11. PacifiCorp Comment Date: 5 p.m. Eastern Time [Docket No. ER05–300–000] on December 27, 2004. [Docket No. ER05–297–000] Take notice that on December 6, 2004, 17. Reliant Energy Wholesale Take notice that on December 6, 2004, PacifiCorp tendered for filing in Generation, LLC PacifiCorp tendered for filing in accordance with 18 CFR 35 of the accordance with 18 CFR 35 of the Commission’s rules and regulations a [Docket No. ER05–306–000] Commission’s rules and regulations a Notice of Cancellation of the October 1, Take notice that on December 6, 2004, Notice of Cancellation of the May 10, 1965 agreement between PacifiCorp and Reliant Energy Wholesale Generation, 1961 agreement between PacifiCorp and the Ogden Defense Depot providing for LLC (REWG) filed with the Commission the Tillamook People’s Utility District electric and transmission service a Notice of Succession pursuant to providing for the separation of the (PacifiCorp’s Rate Schedule FERC No. sections 35.16 and 131.51 of the parties’ systems (PacifiCorp’s Rate 285). Commission’s Regulations, 18 CFR PacifiCorp states that copies of this Schedule FERC No. 53). 35.16 and 131.51 (2004), notifying the filing were supplied to the Public Utility PacifiCorp states that copies of this Commission that REWG is succeeding to Commission of Oregon, the Washington filing were supplied to the Public Utility the Rate Schedule FERC No. 2 of Reliant Utilities and Transportation Commission of Oregon, the Washington Energy Hunterstown, LLC, for reactive Commission, and Hill Air Force Base Utilities and Transportation supply and voltage control from Commission, and Tillamook People’s (on behalf of Ogden Defense Depot). Comment Date: 5 p.m. Eastern Time generation sources service. Utility District. on December 27, 2004. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time on December 27, 2004. on December 27, 2004. 15. PacifiCorp Standard Paragraph 12. PacifiCorp [Docket No. ER05–301–000] Any person desiring to intervene or to [Docket No. ER05–298–000] Take notice that on December 6, 2004, PacifiCorp tendered for filing in protest this filing must file in Take notice that on December 6, 2004, accordance with 18 CFR 35 of the accordance with Rules 211 and 214 of PacifiCorp tendered for filing in Commission’s rules and regulations a the Commission’s Rules of Practice and accordance with 18 CFR 35 of the Notice of Cancellation of the October 30, Procedure (18 CFR 385.211 and Commission’s Rules and Regulations a 1991 agreement between PacifiCorp and 385.214). Protests will be considered by Notice of Cancellation of the February the Utah Associated Municipal Power the Commission in determining the 20, 1958 agreement between PacifiCorp Systems (UAMPS) providing for appropriate action to be taken, but will and the Sheridan-Johnson Rural operation and maintenance of UAMPS’ not serve to make protestants parties to Electrification Association providing for Central Substation by PacifiCorp the proceeding. Any person wishing to transmission service to Buffalo (PacifiCorp’s Rate Schedule FERC No. become a party must file a notice of Substation (PacifiCorp’s Rate Schedule 317). intervention or motion to intervene, as FERC No. 59). PacifiCorp states that copies of this appropriate. Such notices, motions, or PacifiCorp states that copies of this filing were supplied to the Public Utility protests must be filed on or before the filing were supplied to the Public Utility Commission of Oregon, the Washington comment date. Anyone filing a motion Commission of Oregon, the Washington Utilities and Transportation to intervene or protest must serve a copy Utilities and Transportation Commission, and UAMPS. of that document on the Applicant and Commission, and Powder River Energy Comment Date: 5 p.m. Eastern Time all parties to this proceeding. Corporation on behalf of Sheridan- on December 27, 2004. The Commission encourages Johnson Rural Electrification electronic submission of protests and 16. Pinelawn Power LLC Association. interventions in lieu of paper using the Comment Date: 5 p.m. Eastern Time [Docket No. ER05–305–000] ‘‘eFiling’’ link at http://www.ferc.gov. on December 27, 2004. Take notice that on December 6, 2004, Persons unable to file electronically should submit an original and 14 copies 13. PacifiCorp Pinelawn Power LLC (Pinelawn Power) filed with Commission, pursuant to of the protest or intervention to the [Docket No. ER05–299–000] section 205 of the Federal Power Act, an Federal Energy Regulatory Commission, Take notice that on December 6, 2004, application to engage in the sale of 888 First Street, NE., Washington, DC PacifiCorp tendered for filing in electric energy, capacity and ancillary 20426. accordance with 18 CFR 35 of the services at market-based rates. Pinelawn This filing is accessible on-line at Commission’s rules and regulations a Power LLC states that it is engaged in http://www.ferc.gov, using the Notice of Cancellation of the November the business of owning and operating a ‘‘eLibrary’’ link and is available for 10, 1970 agreement between PacifiCorp 79.9 MW generation facility located in review in the Commission’s Public and the Central Lincoln People’s Utility The Town of Babylon, New York. Reference Room in Washington, DC. District providing an emergency Pinelawn Power also states that it seeks There is an ‘‘eSubscription’’ link on the interconnection and standby electric certain waivers and blanket approvals Web site that enables subscribers to service (PacifiCorp’s Rate Schedule under the Commission’s Regulations receive email notification when a FERC No. 93). and the issuance of a Commission order document is added to a subscribed PacifiCorp states that copies of this before February 4, 2005. Pinelawn docket(s). For assistance with any FERC filing were supplied to the Public Utility Power requests an effective date of Online service, please e-mail Commission of Oregon, the Washington February 4, 2005. [email protected], or call
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(866) 208–3676 (toll free). For TTY, call off Turner Road), 6:45 p.m. (EST) made available by the Commission (202) 502–8659. following the meetings. Magalie R. Salas, Magalie R. Salas, Secretary. Magalie R. Salas, Secretary. [FR Doc. E4–3689 Filed 12–16–04; 8:45 am] Secretary. [FR Doc. E4–3699 Filed 12–16–04; 8:45 am] BILLING CODE 6717–01–P [FR Doc. E4–3693 Filed 12–16–04; 8:45 am] BILLING CODE 6717–01–P BILLING CODE 6717–01–P DEPARTMENT OF ENERGY ENVIRONMENTAL PROTECTION DEPARTMENT OF ENERGY Federal Energy Regulatory AGENCY Federal Energy Regulatory Commission [OECA–2004–0020; FRL–7849–7] Commission [Project No. P–2082–027] Agency Information Collection [Docket Nos. CP04–223–000, CP04–293–000 Klamath Hydroelectric Project; Notice Activities; Submission for OMB Review and CP04–358–000] of Meetings and Approval; Comment Request; NESHAP for Chemical Recovery KeySpan LNG, L.P., Algonquin Gas December 10, 2004. Combustion Sources at Kraft, Soda, Transmission, L.L.C., Notice of Public Commission staff is scheduled to meet Sulfite, and Stand-Alone Semichemical Comment Meetings for the Proposed with representatives of the Klamath, Pulp Mills (Renewal), ICR Number KeySpan LNG Facility Upgrade Project Hoopa Valley, and Yurok Tribes 1805.04, OMB Number 2060–0377 regarding the Klamath Hydroelectric December 10, 2004. AGENCY: Environmental Protection Project relicensing. Meetings will be Agency (EPA). As referenced in the November 30, held with those tribes at the locations ACTION: 2004 ‘‘Notice of Availability of the Draft and times listed below: Notice. Environmental Impact Statement for the Klamath Tribes, SUMMARY: In compliance with the Proposed KeySpan LNG Facility Klamath Tribes Administration Paperwork Reduction Act, this Upgrade Project,’’ the staff of the Building, document announces that an Federal Energy Regulatory Commission 501 Chiloquin Boulevard, Information Collection Request (ICR) has prepared a draft Environmental Chiloquin, OR, has been forwarded to the Office of Impact Statement (EIS) on the liquefied Management and Budget (OMB) for January 11, 2005, 10 a.m. (PST). natural gas facility upgrade and natural review and approval. This is a request gas pipeline facilities proposed by Hoopa Valley Tribe, to renew an existing approved KeySpan LNG, L.P. and Algonquin Gas Tribal Council Chambers, collection. This ICR is scheduled to Transmission, L.L.C., respectively, in Hoopa Valley Tribe Neighborhood expire on December 31, 2004. Under the above-referenced dockets Facilities, OMB regulations, the Agency may (collectively referred to as the KeySpan Highway 96, continue to conduct or sponsor the LNG Facility Upgrade Project). Hoopa, California, collection of information while this The November 30, 2004 notice January 13, 2005, 9 a.m. (PST). submission is pending at OMB. This ICR provided instructions for filing written describes the nature of the information Yurok Tribe, collection and its estimated burden and comments on the draft EIS. In addition 190 Klamath Boulevard, cost. to or in lieu of sending written Klamath, California, DATES: Additional comments may be comments, we invite you to attend the January 14, 2005, 10 a.m. (PST). public comment meetings we will submitted on or before January 18, 2005. conduct in the project area. Members of the public and ADDRESSES: Submit your comments, Representatives of the U.S. Army Corps intervenors in the referenced referencing docket ID number OECA– proceedings may attend these meetings; of Engineers and the U.S. Coast Guard 2004–0020, to (1) EPA online using however, participation will be limited to will participate in the meetings, and the EDOCKET (our preferred method), by tribal representatives and the U.S. Department of Transportation has email to [email protected], or by Commission representatives. If the also been invited to participate. mail to: Environmental Protection Tribes decide to disclose information Interested groups and individuals are Agency, EPA Docket Center (EPA/DC), about a specific location which could Enforcement and Compliance Docket encouraged to attend and present oral create a risk or harm to an archeological and Information Center, Mail Code comments on the draft EIS. Transcripts site or Native American cultural 2201T, 1200 Pennsylvania Avenue, of the meetings will be prepared. The resource, the public will be excused for NW., Washington, DC 20460, and (2) locations and times of the public that portion of the meeting when such OMB at: Office of Information and comment meetings are as follows: information is disclosed.1 If you plan to Regulatory Affairs, Office of Tuesday, January 11, 2005 attend any of these meetings, please Management and Budget (OMB), contact John Mudre at the Federal Attention: Desk Officer for EPA, 725 Roger Williams Middle School, 278 Energy Regulatory Commission at 202– Thurbers Avenue, Providence, 17th Street, NW., Washington, DC 502–8902 or [email protected]. The 20503. Rhode Island (Auditorium), 6:45 meetings will be transcribed by a court FOR FURTHER INFORMATION CONTACT: p.m. (EST) reporter, and public transcripts will be Leonard Lazarus, Compliance Wednesday, January 12, 2005 Assessment and Media Programs Gaudet Middle School, 1113 1 Protection from public disclosure involving this kind of specific information is based upon 18 CFR Division, Office of Compliance, Mail Aquidneck Avenue, Middletown, 4.32(b)(3)(ii) of the Commission’s regulations Code 2223A, Environmental Protection Rhode Island (Cafetorium; entrance implementing the Federal Power Act. Agency, 1200 Pennsylvania Avenue,
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NW., Washington, DC 20460; telephone Federal Register notice describing the mandatory (40 CFR part 63, subpart number: (202) 564–6369; fax number: electronic docket at 67 FR 38102 (May MM). (202) 564–0050; email address: 31, 2002), or go to www.epa.gov/ An agency may not conduct or [email protected]. edocket. sponsor, and a person is not required to SUPPLEMENTARY INFORMATION: EPA has Title: NESHAP for Chemical Recovery respond to, a collection of information submitted the following ICR to OMB for Combustion Sources at Kraft, Soda, unless it displays a currently valid OMB review and approval according to the Sulfite, and Stand-Alone Semichemical Control Number. The OMB Control procedures prescribed in 5 CFR 1320.12. Pulp Mills (40 CFR part 63, subpart Numbers for EPA’s regulations are listed On May 25, 2004 (69 FR 29718), EPA MM) (Renewal). in 40 CFR part 9 and 48 CFR chapter 15, sought comments on this ICR pursuant Abstract: This National Emission and are identified on the form and/or to 5 CFR 1320.8(d). EPA received no Standards for Hazardous Air Pollutants instrument, if applicable. comments. (NESHAP) covering emissions from Burden Statement: The annual public EPA has established a public docket chemical recovery combustion sources for this ICR under Docket ID No. OECA– at kraft, soda, sulfite, and stand-alone reporting and recordkeeping burden for 2004–0020, which is available for public semichemical pulp mills relies on the this collection of information is viewing at the Enforcement and capture and/or reduction of HAP estimated to average 475 hours per Compliance Docket and Information emissions by recovery furnaces, smelt response. Burden means the total time, Center in the EPA Docket Center (EPA/ dissolving tanks (SDTs), lime kilns, or effort, or financial resources expended DC), EPA West, Room B102, 1301 soda or sulfite combustion units. The by persons to generate, maintain, retain, Constitution Avenue, NW., Washington, recordkeeping, notification and or disclose or provide information to or DC. The EPA Docket Center Public reporting requirements of the standard for a Federal agency. This includes the Reading Room is open from 8:30 a.m. to are critically important as they allow the time needed to review instructions; 4:30 p.m., Monday through Friday, Agency to determine to which facilities develop, acquire, install, and utilize excluding legal holidays. The telephone the standards apply and they enable the technology and systems for the purposes number for the Reading Room is (202) Agency to monitor initial and ongoing of collecting, validating, and verifying 566–1744, and the telephone number for compliance with the standards. As information, processing and the Enforcement and Compliance much as possible, in order to reduce the maintaining information, and disclosing Docket and Information Center Docket burden, the compliance monitoring and and providing information; adjust the is: (202) 566–1752. An electronic recordkeeping requirements are existing ways to comply with any version of the public docket is available designed to cover parameters that are previously applicable instructions and through EPA Dockets (EDOCKET) at already being monitored as part of the requirements; train personnel to be able http://www.epa.gov/edocket. Use manufacturing process. to respond to a collection of EDOCKET to submit or view public Pulp mill owners or operators information; search data sources; comments, access the index listing of (respondents) are required to submit complete and review the collection of the contents of the public docket, and to initial notifications, maintain records of information; and transmit or otherwise access those documents in the public the occurrence and duration of any disclose the information. docket that are available electronically. startup, shutdown, or malfunction in When in the system, select ‘‘search,’’ the operation of an affected facility, or Respondents/Affected Entities: then key in the docket ID number any period during which the monitoring Owners or operators of pulp mills with identified above. system is inoperative. Respondents are chemical recovery combustion sources. Any comments related to this ICR required to monitor and keep records of Estimated Number of Respondents: should be submitted to EPA and OMB specific operating parameters for each 130. within 30 days of this notice. EPA’s control device and to perform and Frequency of Response: Initial, on policy is that public comments, whether document periodic inspections of the occasion, quarterly, semiannually. submitted electronically or in paper, closed vent and wastewater conveyance will be made available for public systems. All respondents must submit Estimated Total Annual Hour Burden: viewing in EDOCKET as EPA receives semiannual summary reports of 150,043 hours. them and without change, unless the monitored parameters, and they must Estimated Total Annual Costs: comment contains copyrighted material, submit an additional monitoring report $8,667,298, which includes $123,000 Confidential Business Information (CBI), during each quarter in which monitored annualized capital/startup costs, or other information whose public parameters were outside the ranges $864,000 annual O&M costs, and disclosure is restricted by statute. When established in the standard or during $7,680,298 annual labor costs. EPA identifies a comment containing initial performance tests. A source copyrighted material, EPA will provide identified to be out of compliance with Changes in the Estimates: There is an a reference to that material in the the NESHAP will be required to submit increase of 128,515 hours in the total version of the comment that is placed in quarterly reports until the Administrator estimated burden currently identified in EDOCKET. The entire printed comment, is satisfied that the source has corrected the OMB Inventory of Approved ICR including the copyrighted material, will its compliance problem. These Burdens. This increase is due to an be available in the public docket. notifications, reports, and records are improved estimate of the number of Although identified as an item in the essential in determining compliance, facilities and the burden for each official docket, information claimed as and are required of all sources subject facility. CBI, or whose disclosure is otherwise to Maximum Achievable Control Dated: December 4, 2004. restricted by statute, is not included in Technology (MACT) standards. Since the official public docket, and will not none of the required reports to the Oscar Morales, be available for public viewing in Agency have been deemed confidential Director, Collection Strategies Division. EDOCKET. For further information business information, they will not be [FR Doc. 04–27669 Filed 12–16–04; 8:45 am] about the electronic docket, see EPA’s treated as such. Responses are BILLING CODE 6560–50–P
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ENVIRONMENTAL PROTECTION EPA has established a public docket on location. The addition of ethanol to AGENCY for this ICR under Docket ID number gasoline increases the RVP by about 1 OAR–2004–0090, which is available for psi. Gasoline that contains at least 9 [OAR–2004–0090, FRL–7849–8] public viewing at the Air and Radiation volume percent ethanol is subject to a Docket and Information Center in the standard that is 1.0 psi greater. As an Agency Information Collection EPA Docket Center (EPA/DC), EPA aid to industry compliance and EPA Activities; Submission to OMB for West, Room B102, 1301 Constitution enforcement, the product transfer Review and Approval; Comment Avenue, NW., Washington, DC. The document, which is prepared by the Request; Regulation of Fuel and Fuel EPA Docket Center Public Reading producer or importer and which Additives: Gasoline Volatility Room is open from 8:30 a.m. to 4:30 accompanies a shipment of gasoline (Renewal), EPA ICR Number 1367.07, p.m., Monday through Friday, excluding containing ethanol, is required by OMB Control Number 2060–0178 legal holidays. The telephone number regulation to contain a legible and AGENCY: Environmental Protection for the Reading Room is (202) 566–1744, conspicuous statement that the gasoline Agency (EPA). and the telephone number for the Air contains ethanol and the percentage and Radiation Docket and Information concentration of ethanol. This is ACTION: Notice. Center is (202) 566–1742. An electronic intended to deter the mixing within the SUMMARY: In compliance with the version of the public docket is available distribution system, particularly in Paperwork Reduction Act (44 U.S.C. through EPA Dockets (EDOCKET) at retail storage tanks, of gasoline which 3501 et seq.), this document announces http://www.epa.gov/edocket. Use contains ethanol with gasoline which that an Information Collection Request EDOCKET to submit or view public does not contain ethanol. Such mixing (ICR) has been forwarded to the Office comments, access the index listing of would likely result in a gasoline with an of Management and Budget (OMB). This the contents of the public docket, and to ethanol concentration of less than 9 is a request to renew an existing access those documents in the public volume percent but with an RVP above collection. This ICR is scheduled to docket that are available electronically. the standard. Also, a party wishing a expire on December 31, 2004. Under Once in the system, select ‘‘search,’’ testing exemption for research on OMB regulations, the Agency may then key in the docket ID number gasoline that is not in compliance with identified above. continue to conduct or sponsor the the applicable volatility standard, must Any comments related to this ICR collection of information while this submit certain information to EPA. An should be submitted to EPA and OMB agency may not conduct or sponsor, and submission is pending at OMB. This ICR within 30 days of this notice. EPA’s describes the nature of the information a person is not required to respond to, policy is that public comments, whether a collection of information unless it collection and its estimated burden and submitted electronically or in paper, cost. displays a currently valid OMB control will be made available for public number. The OMB control numbers for DATES: Comments must be submitted on viewing in EDOCKET as EPA receives or before January 18, 2005. EPA’s regulations are listed in 40 CFR them and without change, unless the part 9 and 48 CFR chapter 15, and are ADDRESSES: Submit your comments, comment contains copyrighted material, identified on the form and/or referencing docket ID number OAR– confidential business information (CBI), instrument, if applicable. or other information whose public 2004–0090, to (1) EPA online using Burden Statement: The annual disclosure is restricted by statute. When EDOCKET (our preferred method), by e- reporting and recordkeeping burden for EPA identifies a comment containing mail to [email protected], or by this collection of information is copyrighted material, EPA will provide mail to: Environmental Protection estimated to average five seconds per a reference to that material in the Agency, EPA Docket Center (EPA/DC), response. Burden means the total time, version of the comment that is placed in Air and Radiation Docket and effort, or financial resources expended Information Center, Mail code 6102T, EDOCKET. The entire printed comment, including the copyrighted material, will by persons to generate, maintain, retain, 1200 Pennsylvania Avenue, NW., or disclose or provide information to or Washington, DC 20460, and (2) OMB at: be available in the public docket. Although identified as an item in the for a Federal agency. This includes the Office of Information and Regulatory time needed to review instructions; Affairs, Office of Management and official docket, information claimed as CBI, or whose disclosure is otherwise develop, acquire, install, and utilize Budget (OMB), Attention: Desk Officer technology and systems for the purposes for EPA, 725 17th Street, NW., restricted by statute, is not included in the official public docket, and will not of collecting, validating, and verifying Washington, DC 20503. information, processing and FOR FURTHER INFORMATION CONTACT: be available for public viewing in EDOCKET. For further information maintaining information, and disclosing James W. Caldwell, Office of and providing information; adjust the Transportation and Air Quality, Mail about the electronic docket, see EPA’s Federal Register notice describing the existing ways to comply with any Code 6406J, Environmental Protection previously applicable instructions and Agency, 1200 Pennsylvania Avenue, electronic docket at 67 FR 38102 (May 31, 2002), or go to http://www.epa.gov./ requirements; train personnel to be able NW., Washington, DC 20460; telephone to respond to a collection of number: (202) 343–9303; fax number: edocket. Title: Regulation of Fuels and Fuel information; search data sources; (202) 343–2801; e-mail address: Additives: Gasoline Volatility (40 CFR complete and review the collection of [email protected]. 80.27) (Renewal). information; and transmit or otherwise SUPPLEMENTARY INFORMATION: EPA has Abstract: Gasoline volatility, as disclose the information. submitted the following ICR to OMB for measured by Reid Vapor Pressure (RVP) Respondents/Affected Entities: review and approval according to the in pounds per square inch (psi), is Refiners, blenders, and importers of procedures prescribed in 5 CFR 1320.12. controlled in the spring and summer in gasoline blended with ethanol, and On August 25, 2004 (69 FR 52253), EPA order to minimize evaporative parties seeking a testing exemption. sought comments on this ICR pursuant hydrocarbon emissions from motor Estimated Number of Respondents: to 5 CFR 1320.8(d). EPA received no vehicles. RVP is subject to a Federal 1,500. comments. standard of 7.8 psi or 9.0 psi, depending Frequency of Response: On occasion.
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Estimated Total Annual Hour Burden: Douglas County, OR, Wait Period Drilling and Production Operation of 6,447. Ends: January 18, 2005, Contact: Natural Gas Wells, Fremont County, Estimated Total Annual Cost: Sherri Chambers (541) 496–3532. WY, Wait Period Ends: January 18, $419,075, which includes $0 annualized EIS No. 040571, Draft EIS, COE, OH, 2005, Contact: Ray A. Nation (307) capital/startup costs, $20 annual O&M Mill Creek, Ohio Flood Damage 332–3718. Reduction Project, To Reduce costs, and $419,055. EIS No. 040578, Final, FTA, OR, WA, Changes in Estimates: There is an Damages to Communities, Hamilton South Corridor Project, I–205/ increase of 2,269 hours in the total County, OH , Comment Period Ends: Portland Mall Light Rail (Phase I), estimated burden currently identified in January 31, 2005, Contact: Barry Selected the Locally Preferred the OMB Inventory of Approved ICR Schueler (502) 315–6780. Alternative (LPA), Clackamas and Burdens. This increase is due to the EIS No. 040572, Final EIS, FHW, WI, US Multnomah Counties, OR, Wait increased use of ethanol in gasoline 10 Highway Improvements between Period Ends: January 31, 2005, since the previous ICR. Marshfield and Appleton, Trestik Road—CTH ‘‘K’’ (Stevens Point Contact: Rebecca Reyes-Alicea (206) Dated: December 4, 2004. Bypass), Funding and COE Section 220–4464. Oscar Morales, 404 Permit, Portage County, WI, Wait EIS No. 040579, Final EIS, DOI, AZ, CA, Director, Collection Strategies Division. Period Ends: January 18, 2005, NV, NM, Programmatic EIS—Lower [FR Doc. 04–27670 Filed 12–16–04; 8:45 am] Contact: Wesley Shemwell (608) 829– Colorado River Multi-Species BILLING CODE 6560–50–P 7521. Conservation Program, Issuing a EIS No. 040573, Final EIS, FHW, TX, Incidental Take Permit based on the Kelly Parkway Project, Construction Plan, Extending from Lake Mead to ENVIRONMENTAL PROTECTION from U.S. 90 to TX–16, to the Southerly International Boundary AGENCY Improvement Transportation with Mexico, AZ, NV and CA, Wait [ER–FRL–6658–6] Mobility, Facilitate Economic Period Ends: January 18, 2005, Development, and Enhance Safety, Contact: Glen Gould (702) 293–8702. Environmental Impact Statements; Funding and U.S. Army COE Section EIS No. 040580, Final EIS, NPS, WI, Notice of Availability 404 Permit, San Antonio, Bexar County, TX, Wait Period Ends: Arrowhead-Weston Transmission Responsible Agency: Office of Federal January 18, 2005, Contact: Salvador Line Right-of-Way Crossing of the St. Activities, General Information (202) Deocampo (512) 536–5950. Croix National Scenic Riverway, U.S. 564–7167 or http://www.epa.gov/ EIS No. 040574, Draft EIS, AFS, NM, Army COE Section 10 and 404 compliance/nepa/. Buckman Water Diversion Project, Permits, Washburn County, WI, Wait Weekly receipt of Environmental Impact Proposal to Divert Water from Rio Period Ends: January 18, 2005, Statements Filed December 6, 2004 Grande and San Juan-Chama Project, Contact: Jill Medland (715) 483–3284. through December 10, 2004 Pursuant To Meet Water Supply Needs, Sante EIS No. 040581, Final EIS, DOE, CA, to 40 CFR 1506.9. Fe National Forest and Taos Field Imperial-Mexicali 230-kV EIS No. 040567, Final EIS, FHW, NY, Office, Sante Fe County, NM, The Transmission Lines, Construct a Slingerlands Bypass Extension (NYS U.S. Department of Agriculture’s, Double-Circuit 230-kV Transmission Route 85) (P.I.N. 1125.19) Route 140 Forest Service and The U.S. Line, Presidential Permit and Right- (Cherry Avenue Extension) to the Department of Interior’s, Bureau of of-Way Grants, Imperial Valley Albany City Line, Reconstruction Land Management are Joint Lead Substation to Calexico at the U.S.- Town of Bethlehem, Albany County, Agencies on the above project. The Mexico Border, Imperial County, CA NY, Wait Period Ends: January 18, Contact Person for AFS is Sanford and U.S.-Mexico Border, Wait Period 2005, Contact: Robert Arnold (581) Hurlocker at phone number (505) Ends: January 18, 2005, Contact: Ellen 431–4127. 753–7331; Contact person for BLM is Russell (202) 586–9624. EIS No. 040568, Final EIS, FHW, IL, U.S. Sharon Churchill at (505) 751–4725. EIS No. 040582, Final EIS, IBR, CA, Route 20 (FAP 301) Project, EIS No. 040575, Final EIS, IBR, CA, San Sacramento River Settlement Construction from IL Route 84 north Joaquin River Exchange Contractors Contractors (SRSC), To Renew the of Galena to Bolton Road northwest of Water Authority—2005 to 2014, Water Settlement Contractors Long-Term Freeport, Funding, NPDES Permit and Transfer Program, Stanislaus, San Contract Renewal for 145 Contractors, U.S. Army COE Section 404 Permit Joaquin, Merced, Madera, Fresno, San Central Valley Project (CVP), Issuance, Jo Davies and Stephenson Benito, Santa Clara, Kern, and Kings Sacramento River, Shasta, Tehama, Counties, IL, Wait Period Ends: Counties, CA, Wait Period Ends: Butte, Glenn, Colusa, Sutter, Yolo, January 18, 2005, Contact: Norman R. January 18, 2005, Contact: Bob Eckart Sacrament, Portion of Placer and Stoner (217) 492–4640. (916) 978–5051. EIS No. 040569, Draft EIS, NRC, VA, EIS No. 040576, Final EIS, BIA, OR, Solano Counties, CA, Wait Period Early Site Permit (ESP) at the North Wanapa Energy Center, Construction Ends: January 18, 2005, Contact: Anna Power Station ESP Site (TAC and Operation a New 1,200 Megawatt Buford Holt (916) 989–7179. No. MC1128), Construction and (MW) Natural Gas-Fired Electric EIS No. 040583, Draft EIS, BLM, WY, Operation, NUREG–1811, Louisa Power Generating Facility, Rawlin Field Office Planning Area County, VA, Comment Period Ends: Confederated Tribes of the Umatilla Resource Management Plan, March 1, 2005, Contact: Jack Cushing Indian Reservation (CTUIR), in the Addresses the Comprehensive (301) 415–1424. City of Hermiston and the Port of Analysis of Alternatives for the EIS No. 040570, Final EIS, AFS, OR, Umatilla, OR, Wait Period Ends: Planning and Management of Public Diamond Lake Restoration Project, January 18, 2005, Contact: Jerry Lauer Land and Resource Administered by Improve Water Quality and the (541) 278–3786. (BLM), Albany, Carbon, Laramie and Recreational Fishery, Umpqua EIS No. 040577, Final EIS, BIA, WY, Sweetwater Counties, WY , Comment National Forest, Diamond Lake Wind River Natural Gas Field Period Ends: March 17, 2005, Contact: Ranger District, Umpqua River Basin, Development Project, Construction, John Spehar (307) 328–4264.
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Amended Notices statements (EISs) was published in FR Reforesting 1,936 Acres with Ponderosa EIS No. 040472, Draft EIS, AFS, CO, dated April 02, 2004 (69 FR 17403). Pine Seedling and Closing/ Decommissioning Roads, Deschutes Village at Wolf Creek Project, Draft EISs Application for Transportation and National Forest, Bend/Fort Rock Ranger ERP No. D–FHW–F40425–OH Rating Utility Systems and Facilities, District, Deschutes County, OR. EC1, US–24 Transportation Project, Proposed Development and Use of Summary: EPA expressed lack of Improvements between Napoleon to Roads and Utility Corridors Crossing, objections and supports the measures to Toledo, Funding, Lucas and Henry National Forest System Lands to reduce the road density in the project Counties, OH. area. Access 287.5 Acres of Private Summary: EPA expressed an Property Land, Mineral County, CO, ERP No. F–COE–E36183–FL, environmental concern about impacts to Picayune Strand Restoration (formerly Comment Period Ends: January 5, approximately 7 acres of wetlands and 2005, Contact: Robert Dalrymple (719) Southern Golden Gate Estates recommends that the secondary impacts Ecosystem Restoration), Comprehensive 852–5941. Revision of FR Notice at planned intersections be addressed. Published on 11/26/2004: CEQ Everglades Restoration Plan, ERP No. D–FRA–K59004–CA Rating Implementation, Collier County, FL. Comment Period Ending on 12/06/ EC2, Los Angeles-To-San Diego 2004 has been Extended to 1/05/2005. Summary: EPA continues to support (LOSSAN) Rail Corridor, Proposed Rail the specific objectives of this proposal EIS No. 040538, Draft EIS, FAA, FL, Corridor Improvement Studies to Panama City-Bay County International as well as the related environmental Increase Intercity Travel for Faster, Safer goals of the Comprehensive Everglades Airport (PFN), Proposed Relocation to and Reliable Passenger Rail System, Los a New Site, NPDES Permit and U.S. Restoration Project. EPA noted that Angeles, Orange, and San Diego long-term monitoring will be an on- Army COE Section 404 Permit, Bay Counties, CA. County, FL, Comment Period Ends: going responsibility of the Interagency Summary: EPA expressed concerns Operational Team and EPA will January 28, 2005, Contact: Virginia with the analysis of direct, indirect, and Lane (407) 812–6331, Ext 129. continue to participate actively with its cumulative impacts to endangered state/federal stakeholders. Revision of FR Notice Published on species, coastal resources, water quality 11/26/04: CEQ Comment Period and air quality, and the integration of Dated: December 14, 2004. Ending 1/21/2005 has been Extended the proposed improvements with Robert W. Hargrove, to 1/28/2005. adjacent land-use and conservation Director, NEPA Compliance Division, Office EIS No. 040564, Final EIS, AFS, SD, planning efforts. of Federal Activities. Southeast Geographic Area Rangeland ERP No. D–IBR–J39032–00 Rating [FR Doc. 04–27674 Filed 12–16–04; 8:45 am] Management on National Forest EC2, Operation of Flaming Gorge Dam BILLING CODE 6560–50–P System Lands of the Buffalo Gap Colorado River Storage Project, To National Grassland, To Implement Protect and Assist in Recovery of Best Management Grazing Practices, Populations and Designated Critical ENVIRONMENTAL PROTECTION Buffalo Gap National Grassland, Falls Habitat of Four Endangered Fishes: AGENCY River Ranger District, Fall River Bonytail, Colorado Pikeminnow, [FRL–7849–6] County, SD, Wait Period Ends: Humpback Chub and Razorback Sucker, January 10, 2005, Contact: Michael L. Green River, UT and WY. Proposed CERCLA Administrative Erik (605) 745–4107. Revision of FR Summary: EPA expressed concerns Cost Recovery Settlement; Sulphur Notice Published on 12/10/04: that the Preferred Alternative may Bank Mercury Mine Superfund Site Correction to Title. adversely affect other wildlife and their Dated: December 14, 2004. habitats. EPA also expressed concerns AGENCY: Environmental Protection Robert W. Hargrove, over the uncertainties surrounding both Agency (EPA). Director, NEPA Compliance Division, Office the impacts of the proposed ACTION: Notice; request for public of Federal Activities. management actions and the adaptive comment. [FR Doc. 04–27673 Filed 12–16–04; 8:45 am] management changes that may be SUMMARY: In accordance with section BILLING CODE 6560–50–P necessitated in the future. In addition, EPA expressed concerns that only one 122(i) of the Comprehensive alternative was evaluated besides the No Environmental Response, ENVIRONMENTAL PROTECTION Action alternative, and suggested that Compensation, and Liability Act, as AGENCY other alternatives be evaluated. amended (‘‘CERCLA’’), 42 U.S.C. ERP No. DS–AFS–L65344–AK Rating 9622(i), notice is hereby given of a [ER–FRL–6658–7] EC2, Emerald Bay Timber Sale, proposed administrative settlement with NEC Acquisition Co. for recovery of past Environmental Impact Statements and Implementation, Additional Information response costs concerning closure and Regulations; Availability of EPA on the Potential Effects of the Project abandonment of geothermal wells at the Comments Alternatives, Ketchikan-Misty Fiords Ranger District, Tongass National Sulphur Bank Mercury Mine Site in Availability of EPA comments Forest, AK. Lake County, California. The settlement prepared pursuant to the Environmental Summary: EPA expressed requires the settling party to pay Review Process (ERP), under Section environmental concerns related to the $1,700,000 to the EPA Hazardous 309 of the Clean Air Act and Section range of alternatives, as well as a need Substance Superfund for past response 102(2)(c) of the National Environmental for information related to government- costs incurred by EPA at the Site. The Policy Act as amended. Requests for to-government consultation with settlement includes a covenant not to copies of EPA comments can be directed Alaskan Native Tribal Governments. sue the settling party pursuant to to the Office of Federal Activities at section 107(a) of CERCLA, 42 U.S.C. (202) 564–7167. Final EISs 9607(a). For thirty (30) days following An explanation of the ratings assigned ERP No. F–AFS–L65463–OR, 18 Fire the date of publication of this notice, the to draft environmental impact Recovery Project, Salvaging Dead Trees, Agency will receive written comments
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relating to the settlement. The Agency periodic status reports on the chemicals EPA Docket Center, Rm. B102-Reading will consider all comments received and under review and the receipt of notices Room, EPA West, 1301 Constitution may modify or withdraw its consent to of commencement to manufacture those Ave., NW., Washington, DC. The EPA the settlement if comments received chemicals. This status report, which Docket Center is open from 8:30 a.m. to disclose facts or considerations which covers the period from November 10, 4:30 p.m., Monday through Friday, indicate that the settlement is 2004 to November 30, 2004, consists of excluding legal holidays. The EPA inappropriate, improper, or inadequate. the PMNs pending or expired, and the Docket Center Reading Room telephone The Agency’s response to any comments notices of commencement to number is (202) 566–1744 and the received will be available for public manufacture a new chemical that the telephone number for the OPPT Docket, inspection at 75 Hawthorne Street, San Agency has received under TSCA which is located in EPA Docket Center, Francisco, CA 94105. section 5 during this time period. is (202) 566–0280. DATES: Comments must be submitted on DATES: Comments identified by the 2. Electronic access. You may access or before January 18, 2005. docket ID number OPPT–2004–0131 this Federal Register document electronically through the EPA Internet ADDRESSES: The proposed settlement is and the specific PMN number or TME under the ‘‘Federal Register’’ listings at available for public inspection at EPA number, must be received on or before http://www.epa.gov/fedrgstr/. Region IX, 75 Hawthorne Street, San January 18, 2005. An electronic version of the public Francisco, California. A copy of the ADDRESSES: Comments may be docket is available through EPA’s proposed settlement may be obtained submitted electronically, by mail, or electronic public docket and comment from Larry Bradfish, EPA Region IX, 75 through hand delivery/courier. Follow system, EPA Dockets. You may use EPA Hawthorne Street, ORC–3, San the detailed instructions as provided in Dockets at http://www.epa.gov/edocket/ Francisco, CA 94105, telephone number Unit I. of the SUPPLEMENTARY to submit or view public comments, (415) 972–3934. Comments should INFORMATION. access the index listing of the contents reference the Sulphur Bank Mercury FOR FURTHER INFORMATION CONTACT: of the official public docket, and to Mine Superfund Site, Lake County, Colby Lintner, Regulatory Coordinator, access those documents in the public California and EPA Docket No. 2005–01 Environmental Assistance Division, docket that are available electronically. and should be addressed to Larry Office of Pollution Prevention and Although not all docket materials may Bradfish at the address below. Toxics (7408M), Environmental be available electronically, you may still FOR FURTHER INFORMATION CONTACT: Protection Agency, 1200 Pennsylvania access any of the publicly available Larry Bradfish, Assistant Regional Ave., NW., Washington, DC 20460– docket materials through the docket Counsel (ORC–3), Office of Regional 0001; telephone number: (202) 554– facility identified in Unit I.B.1. Once in Counsel, U.S. EPA Region IX, 75 1404; e-mail address: TSCA- the system, select ‘‘search,’’ then key in Hawthorne Street, San Francisco, CA [email protected]. the appropriate docket ID number. 94105; phone: (415) 972–3934; fax: (415) Certain types of information will not SUPPLEMENTARY INFORMATION: 947–3570; e-mail: be placed in the EPA Dockets. [email protected]. I. General Information Information claimed as CBI and other information whose disclosure is Dated: December 8, 2004. A. Does this Action Apply to Me? Elizabeth Adams, restricted by statute, which is not This action is directed to the public Acting Director, Superfund Division, Region included in the official public docket, IX. in general. As such, the Agency has not will not be available for public viewing attempted to describe the specific [FR Doc. 04–27668 Filed 12–16–04; 8:45 am] in EPA’s electronic public docket. EPA’s entities that this action may apply to. policy is that copyrighted material will BILLING CODE 6560–50–P Although others may be affected, this not be placed in EPA’s electronic public action applies directly to the submitter docket but will be available only in ENVIRONMENTAL PROTECTION of the premanufacture notices addressed printed, paper form in the official public AGENCY in the action. If you have any questions docket. To the extent feasible, publicly regarding the applicability of this action available docket materials will be made [OPPT–2004–0131; FRL–7691–6] to a particular entity, consult the person available in EPA’s electronic public listed under FOR FURTHER INFORMATION docket. When a document is selected Certain New Chemicals; Receipt and CONTACT. from the index list in EPA Dockets, the Status Information system will identify whether the B. How Can I Get Copies of this AGENCY: Environmental Protection document is available for viewing in Document and Other Related EPA’s electronic public docket. Agency (EPA). Information? ACTION: Notice. Although not all docket materials may 1. Docket. EPA has established an be available electronically, you may still SUMMARY: Section 5 of the Toxic official public docket for this action access any of the publicly available Substances Control Act (TSCA) requires under docket identification (ID) number docket materials through the docket any person who intends to manufacture OPPT–2004–0131. The official public facility identified in Unit I.B.1. EPA (defined by statute to include import) a docket consists of the documents intends to work towards providing new chemical (i.e., a chemical not on specifically referenced in this action, electronic access to all of the publicly the TSCA Inventory) to notify EPA and any public comments received, and available docket materials through comply with the statutory provisions other information related to this action. EPA’s electronic public docket. pertaining to the manufacture of new Although a part of the official docket, For public commenters, it is chemicals. Under sections 5(d)(2) and the public docket does not include important to note that EPA’s policy is 5(d)(3) of TSCA, EPA is required to Confidential Business Information (CBI) that public comments, whether publish a notice of receipt of a or other information whose disclosure is submitted electronically or in paper, premanufacture notice (PMN) or an restricted by statute. The official public will be made available for public application for a test marketing docket is the collection of materials that viewing in EPA’s electronic public exemption (TME), and to publish is available for public viewing at the docket as EPA receives them and
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without change, unless the comment public docket. If EPA cannot read your or by e-mail. You may claim contains copyrighted material, CBI, or comment due to technical difficulties information that you submit to EPA as other information whose disclosure is and cannot contact you for clarification, CBI by marking any part or all of that restricted by statute. When EPA EPA may not be able to consider your information as CBI (if you submit CBI identifies a comment containing comment. on disk or CD ROM, mark the outside copyrighted material, EPA will provide i. EPA Dockets. Your use of EPA’s of the disk or CD ROM as CBI and then a reference to that material in the electronic public docket to submit identify electronically within the disk or version of the comment that is placed in comments to EPA electronically is CD ROM the specific information that is EPA’s electronic public docket. The EPA’s preferred method for receiving CBI). Information so marked will not be entire printed comment, including the comments. Go directly to EPA Dockets disclosed except in accordance with copyrighted material, will be available at http://www.epa.gov/edocket/, and procedures set forth in 40 CFR part 2. in the public docket. follow the online instructions for In addition to one complete version of Public comments submitted on submitting comments. Once in the the comment that includes any computer disks that are mailed or system, select ‘‘search,’’ and then key in information claimed as CBI, a copy of delivered to the docket will be docket ID number OPPT–2004–0131. the comment that does not contain the transferred to EPA’s electronic public The system is an ‘‘anonymous access’’ information claimed as CBI must be docket. Public comments that are system, which means EPA will not submitted for inclusion in the public mailed or delivered to the docket will be know your identity, e-mail address, or docket and EPA’s electronic public scanned and placed in EPA’s electronic other contact information unless you docket. If you submit the copy that does public docket. Where practical, physical provide it in the body of your comment. not contain CBI on disk or CD ROM, objects will be photographed, and the ii. E-mail. Comments may be sent by mark the outside of the disk or CD ROM photograph will be placed in EPA’s e-mail to [email protected], Attention: clearly that it does not contain CBI. electronic public docket along with a Docket ID Number OPPT–2004–0131 Information not marked as CBI will be brief description written by the docket and PMN Number or TME Number. In included in the public docket and EPA’s staff. contrast to EPA’s electronic public electronic public docket without prior docket, EPA’s e-mail system is not an C. How and To Whom Do I Submit notice. If you have any questions about ‘‘anonymous access’’ system. If you Comments? CBI or the procedures for claiming CBI, send an e-mail comment directly to the please consult the technical person You may submit comments docket without going through EPA’s listed under FOR FURTHER INFORMATION electronically, by mail, or through hand electronic public docket, EPA’s e-mail CONTACT. delivery/courier. To ensure proper system automatically captures your e- receipt by EPA, identify the appropriate mail address. E-mail addresses that are E. What Should I Consider as I Prepare docket ID number and specific PMN automatically captured by EPA’s e-mail My Comments for EPA? number or TME number in the subject system are included as part of the You may find the following line on the first page of your comment. comment that is placed in the official suggestions helpful for preparing your Please ensure that your comments are public docket, and made available in comments: submitted within the specified comment EPA’s electronic public docket. 1. Explain your views as clearly as period. Comments received after the iii. Disk or CD ROM. You may submit possible. close of the comment period will be comments on a disk or CD ROM that 2. Describe any assumptions that you marked ‘‘late.’’ EPA is not required to you mail to the mailing address used. consider these late comments. If you identified in Unit I.C.2. These electronic 3. Provide copies of any technical wish to submit CBI or information that submissions will be accepted in information and/or data you used that is otherwise protected by statute, please WordPerfect or ASCII file format. Avoid support your views. follow the instructions in Unit I.D. Do the use of special characters and any 4. If you estimate potential burden or not use EPA Dockets or e-mail to submit form of encryption. costs, explain how you arrived at the CBI or information protected by statute. 2. By mail. Send your comments to: estimate that you provide. 1. Electronically. If you submit an Document Control Office (7407M), 5. Provide specific examples to electronic comment as prescribed in this Office of Pollution Prevention and illustrate your concerns. unit, EPA recommends that you include Toxics (OPPT), Environmental 6. Offer alternative ways to improve your name, mailing address, and an e- Protection Agency, 1200 Pennsylvania the notice or collection activity. mail address or other contact Ave., NW., Washington, DC 20460– 7. Make sure to submit your information in the body of your 0001. comments by the deadline in this comment. Also include this contact 3. By hand delivery or courier. Deliver document. information on the outside of any disk your comments to: OPPT Document 8. To ensure proper receipt by EPA, or CD ROM you submit, and in any Control Office (DCO) in EPA East Bldg., be sure to identify the docket ID number cover letter accompanying the disk or Rm. 6428, 1201 Constitution Ave., NW., assigned to this action and the specific CD ROM. This ensures that you can be Washington, DC. Attention: Docket ID PMN number you are commenting on in identified as the submitter of the Number OPPT–20040131 and PMN the subject line on the first page of your comment and allows EPA to contact you Number or TME Number. The DCO is response. You may also provide the in case EPA cannot read your comment open from 8 a.m. to 4 p.m., Monday name, date, and Federal Register due to technical difficulties or needs through Friday, excluding legal citation. further information on the substance of holidays. The telephone number for the II. Why is EPA Taking this Action? your comment. EPA’s policy is that EPA DCO is (202) 564–8930. will not edit your comment, and any Section 5 of TSCA requires any identifying or contact information D. How Should I Submit CBI to the person who intends to manufacture provided in the body of a comment will Agency? (defined by statute to include import) a be included as part of the comment that Do not submit information that you new chemical (i.e., a chemical not on is placed in the official public docket, consider to be CBI electronically the TSCA Inventory to notify EPA and and made available in EPA’s electronic through EPA’s electronic public docket comply with the statutory provisions
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pertaining to the manufacture of new manufacture a new chemical that the additional non-CBI information that chemicals. Under sections 5(d)(2) and Agency has received under TSCA may be available. 5(d)(3) of TSCA, EPA is required to section 5 during this time period. In Table I of this unit, EPA provides publish a notice of receipt of a PMN or III. Receipt and Status Report for PMNs the following information (to the extent an application for a TME and to publish that such information is not claimed as periodic status reports on the chemicals This status report identifies the PMNs pending or expired, and the notices of CBI) on the PMNs received by EPA under review and the receipt of notices commencement to manufacture a new during this period: the EPA case number of commencement to manufacture those chemical that the Agency has received assigned to the PMN; the date the PMN chemicals. This status report, which under TSCA section 5 during this time was received by EPA; the projected end covers the period from November 10, period. If you are interested in date for EPA’s review of the PMN; the 2004 to November 30, 2004, consists of information that is not included in the submitting manufacturer; the potential the PMNs pending or expired, and the following tables, you may contact EPA uses identified by the manufacturer in notices of commencement to as described in Unit II. to access the PMN; and the chemical identity.
I. 37 PREMANUFACTURE NOTICES RECEIVED FROM: 11/10/04 TO 11/30/04
Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date
P–05–0122 11/12/04 02/09/05 Huntsman (G) Surfactant (G) Alkylpolyoxyalkylenesulfosuccinima- te P–05–0123 11/12/04 02/09/05 Huntsman (G) Chemical intermediate (G) Alkylpolyoxyalkyleneamide P–05–0124 11/12/04 02/09/05 CBI (G) Open non dispersive use (G) Non aromatic polyester resin, based on cycloaliphatic acids P–05–0125 11/12/04 02/09/05 Shin-etsu Silicones of (S) Additives of adhesive for building (S) 9-octadecenamide, n- America, Inc. materials (trimethylsilyl)-, (9z)-(9ci)- P–05–0126 11/12/04 02/09/05 CBI (G) Additive in inks and coatings (G) Polyester acrylate P–05–0127 11/12/04 02/09/05 CBI (G) Adhesive component (G) Polymer of alkanepolyol, fatty acid derivative, and disubstituted benzenes P–05–0128 11/12/04 02/09/05 Shin-etsu silicones of (S) Additive of adhesives for building (S) Siloxanes and silicones, hydroxy America, Inc. materials me, 3-hydroxypropyl me, esters with hydrogenated tallow fatty acids, ethers with polyethylene- polypropylene glycol mono-bu ether P–05–0129 11/15/04 02/12/05 Invista SA’ R.I. (S) Complexing agents for thickening (S) Nitric acid, reaction products with grease cyclododecanol and cyclododecanone, by-products from, high-boiling fraction, dilithium salts P–05–0130 11/15/04 02/12/05 Invista SA’ R.l. (S) Complexing agents for thickening (S) Dodecanedioic acid, dilithium salt grease P–05–0131 11/15/04 02/12/05 CBI (S) Organic synthesis intermediate (G) Heteropolycycle, 9-(2- carboxyphenyl)-3,6-bis[(2- methylphenyl)amino]-, chloride P–05–0132 11/15/04 02/12/05 CBI (S) Coating for leather industries (G) Waterborne polyurethane P–05–0133 11/15/04 02/12/05 Ashland Inc., Environ- (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer mental Health and resin Safety P–05–0134 11/15/04 02/12/05 Ashland Inc., Environ- (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer mental Health and resin Safety P–05–0135 11/15/04 02/12/05 Ashland Inc., Environ- (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer mental Health and resin Safety P–05–0136 11/15/04 02/12/05 Ashland Inc., Environ- (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer mental Health and resin Safety P–05–0137 11/15/04 02/12/05 Ashland Inc., Environ- (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer mental Health and resin Safety P–05–0138 11/15/04 02/12/05 Ashland Inc., Environ- (G) Adhesive, coating, ink (G) Multifunctional acrylate oligomer mental Health and resin Safety P–05–0139 11/18/04 02/15/05 CBI (G) Contained used in energy produc- (G) Ether amine salt tion. P–05–0140 11/18/04 02/15/05 CBI (G) Contained used in energy produc- (G) Ether amine salt tion. P–05–0141 11/18/04 02/15/05 CBI (G) Emulsifier (G) Alkyl amido diamines P–05–0142 11/18/04 02/15/05 CBI (G) Auxiliary for coatings (G) Alkyl acrylate, polymer with alkyl acrylate, alkylacrylamide, and alkyl acid
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I. 37 PREMANUFACTURE NOTICES RECEIVED FROM: 11/10/04 TO 11/30/04—Continued
Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date
P–05–0143 11/22/04 02/19/05 CBI (G) Component of electronic device; (G) Polymer of halogenated alkenes contained use P–05–0144 11/22/04 02/19/05 CBI (G) Plasticizer (G) Phthalate type polyester P–05–0145 11/24/04 02/21/05 Huntsman Petro- (G) Intermediate (G) Polyether polyol chemical Corpora- tion P–05–0146 11/24/04 02/21/05 Huntsman Petro- (G) Epoxy resin curing agent (G) Aliphatic polyetheramine chemical Corpora- tion P–05–0147 11/24/04 02/21/05 CIBA Specialty Chemi- (S) Fluorescent paper whitener (G) Pmn substance a: cals Corporation Monopotassium/monoamp sub- stituted triazinyl stilbene; pmn sub- stance b: Diamp substituted tri- azinyl stilbene P–05–0148 11/29/04 02/26/05 CIBA Specialty Chemi- (S) Antioxidant for lubricating oils (G) Substituted benzene proprionic cals Corporation acid esters P–05–0149 11/29/04 02/26/05 Firmenich Inc. (S) Aroma for use in fragrance mix- (S) 3-cyclohexene-1-carboxylic acid, tures, which in turn are used in per- 2,6,6-trimethyl-, methyl ester, fumes, soaps, cleansers, etc. (1r,2s)- P–05–0150 11/30/04 02/27/05 Wacker Silicones a di- (S) Skincare, suncare, decorative (S) Siloxanes and silicones, di-me, vision of Wacker cosmetics lauryl me Chemical Corpora- tion P–05–0151 11/30/04 02/27/05 CBI (G) Additive for manufacture of arti- (G) Styrene-alkyl acrylate copolymer cles P–05–0152 11/30/04 02/27/05 Wacker Silicones a di- (S) Skincare, suncare, decorative (G) Polydimethyl alkyl methyl siloxane vision of Wacker cosmetics Chemical Corpora- tion P–05–0153 11/30/04 02/27/05 CBI (G) Contained use in energy produc- (G) Polybasic acid sulfonate polymer tion. salt P–05–0154 11/30/04 02/27/05 CBI (G) Contained use in energy produc- (G) Polybasic acid sulfonate polymer tion. salt P–05–0155 11/30/04 02/27/05 CBI (G) Contained use in energy produc- (G) Polybasic acid sulfonate polymer tion. salt P–05–0156 11/30/04 02/27/05 CBI (G) Contained use in energy produc- (G) Polybasic acid sulfonate polymer tion. salt P–05–0157 11/30/04 02/27/05 CBI (G) Contained use in energy produc- (G) Polybasic acid sulfonate polymer tion. salt P–05–0158 11/30/04 02/27/05 CBI (G) Additive for manufacture of arti- (G) Ammonium-functional methacry- cles late-styrene copolymer
In Table II of this unit, EPA provides CBI) on the Notices of Commencement the following information (to the extent to manufacture received: that such information is not claimed as
II. 26 NOTICES OF COMMENCEMENT FROM: 11/10/04 TO 11/30/04
Commencement Case No. Received Date Notice End Date Chemical
P–01–0595 11/17/04 11/10/04 (G) Quaternary salt of glycol succinate P–02–0115 11/18/04 11/10/04 (G) N,n’-alkylenebis(alkenamide) P–02–0116 11/18/04 11/10/04 (G) N,n’-alkylenebis(alkenamide) P–02–0747 11/16/04 11/05/04 (G) Amine polymer salt P–02–0761 11/16/04 11/07/04 (S) Octadecanoic acid, 2-[[2,2-bis[[(1-oxooctadecyl)oxy]methyl]butoxy]methyl]-2- ethyl-1,3-prop anediyl ester P–03–0624 11/10/04 10/08/04 (S) Dodecanedioic acid, dimethyl ester P–03–0782 11/19/04 11/17/04 (G) Combed silicone acrylate P–04–0162 11/23/04 10/19/04 (G) Salt of a copolymer of acrylic acid and acrylic acid derivatives P–04–0274 11/18/04 11/15/04 (G) Substituted p-xylene P–04–0297 11/09/04 06/15/04 (G) Fatty amide derivative P–04–0438 11/24/04 11/11/04 (G) Acrylate ester P–04–0448 11/10/04 10/28/04 (G) Acid amine salt P–04–0562 11/23/04 10/19/04 (G) Ester derivative of amino acid P–04–0632 11/18/04 11/05/04 (G) Bis substituted benzenesulfonic acid amino substituted triazin amino sub- stituted phenyl azo compound P–04–0644 11/12/04 11/01/04 (G) Polyurethane acrylic ester
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II. 26 NOTICES OF COMMENCEMENT FROM: 11/10/04 TO 11/30/04—Continued
Commencement Case No. Received Date Notice End Date Chemical
P–04–0648 11/10/04 10/22/04 (G) Amine functional epoxy resin salted with organic acid P–04–0672 11/15/04 11/05/04 (G) Isocyanate functional polyester urethane polymer P–04–0691 11/15/04 11/05/04 (G) Urethane acrylic hybrid polymer P–04–0712 11/23/04 11/04/04 (G) Azole polymer P–04–0722 11/18/04 10/19/04 (G) Acrylic polymer P–04–0723 11/18/04 10/19/04 (G) Acrylic polymer P–04–0743 11/17/04 11/08/04 (G) Substituted phosphonic acid compounded with substituted urea P–04–0759 11/24/04 10/25/04 (G) Aliphatic polyamine P–04–0766 11/23/04 11/01/04 (G) Mineral/vegetable oil based alkyd P–04–0769 11/18/04 11/08/04 (G) Substituted methyl ester of octadecanoic acid P–04–0801 11/23/04 11/16/04 (G) Aluminum alkoxide complex
List of Subjects EPA–NE is extending the comment The draft permit is based on an Environmental protection, Chemicals, period for these permits. administrative record available for public review at the EPA address listed Premanufacturer notices. DATES: The comment period is being extended from December 17, 2004, to above. Copies of information in the Dated: December 7, 2004. January 18, 2005. Comments must be record are available upon request. A reasonable fee may be charged for Vicki Simons, received or postmarked by midnight on copying. Acting Director, Information Management January 18, 2004. Interested persons Division, Office of Pollution Prevention and may submit comments on the draft FOR FURTHER INFORMATION CONTACT: Toxics. general permit as part of the Additional information concerning the [FR Doc. 04–27672 Filed 12–16–04; 8:45 am] administrative record to the EPA–NE at draft permit may be obtained between BILLING CODE 6560–50–S the address given below. Within the the hours of 8 a.m. and 4 p.m., Monday comment period, interested persons through Friday excluding holidays from: may also request in writing a public Steven Rapp, Office of Ecosystem ENVIRONMENTAL PROTECTION hearing pursuant to 40 CFR 124.12 Protection, Environmental Protection AGENCY concerning the draft general permit. Agency, 1 Congress Street, Suite 1100 Such requests shall state the nature of (CPE), Boston, MA 02114–2023, [FRL–7850–1] the issues proposed to be raised at the telephone: (617) 918–1551, e-mail: [email protected]. Notice of Availability of Draft National hearing. A public hearing may be held Pollution Discharge Elimination at least thirty days after public notice SUPPLEMENTARY INFORMATION: The draft System (NPDES) General Permits whenever the Regional Administrator general permits may be viewed over the MAG910000 and NHG910000 for finds that response to this notice Internet via the EPA–Region 1 Web site. Discharges From Groundwater indicates significant public interest. In For dischargers in Massachusetts, see Remediation and Miscellaneous reaching a final decision on the draft http://www.epa.gov/ne/npdes/ Surface Water Discharge Activities in permits, the Regional Administrator will mass.html#dgp. For dischargers in New the States of Massachusetts and New respond to all significant comments and Hampshire, see http://www.epa.gov/ne/ Hampshire and Indian Country Lands make responses available to the public npdes/newhampshire.html#dgp. in the State of Massachusetts at EPA–NE’s Boston office. All public Dated: December 8, 2004. comments or requests for a public Robert W. Varney, AGENCY: Environmental Protection hearing must be submitted to the Regional Administrator, Region 1. Agency (EPA). address below. [FR Doc. 04–27666 Filed 12–16–04; 8:45 am] ACTION: Notice of Availability of Draft ADDRESSES: Written comments may be BILLING CODE 6560–50–P NPDES General Permits MAG910000 hand delivered or mailed to: Roger A. and NHG910000: Extension of Comment Janson, Director, Municipal Permits Period. Branch (CMP), EPA–NE, 1 Congress ENVIRONMENTAL PROTECTION Street, Suite 1100, Boston, AGENCY SUMMARY: On Friday, November 2, 2004, Massachusetts 02114–2023. the Environmental Protection Agency’s [OW–FRL–7849–4] New England Regional Office (EPA–NE) EPA also requests that comments be published a Notice of Availability for sent via e-mail to Notice of Draft Aquatic Life Criteria for the Draft National Pollutant Discharge [email protected]. However, no Selenium and Request for Scientific Elimination System (NPDES) General facsimiles (faxes) will be accepted. A Information, Data, and Views Permits MAG910000 and NHG910000 copy of all comments and supporting materials should also be submitted to: AGENCY: Environmental Protection for Discharges from Groundwater Agency (EPA). In MA: Mr. Paul Hogan, NPDES Remediation and Miscellaneous Surface ACTION: Permit Unit, MA Dept. of Env. Notice of Availability of Draft Water Discharge Activities in the States Aquatic Life Criteria Document for of Massachusetts and New Hampshire Protection, 627 Main Street, Worcester, MA 01608. Selenium, and Request for Scientific and Indian Country Lands in the State Information, Data, and Views Pertaining of Massachusetts in the Federal Register In NH: Mr. George Berlandi, NH Dept. to the Criteria. (69 FR 63531). In response to requests of Env. Services, Wastewater from sources that may be eligible for Engineering Bureau, 29 Hazen Drive, SUMMARY: The Environmental Protection coverage under these general permits, P.O. Box 95, Concord, NH 03302–0095. Agency announces the availability of a
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draft aquatic life criteria document for Room B102, 1301 Constitution Ave., views, whether submitted electronically selenium and requests scientific NW., Washington, DC. The EPA Docket or in paper, will be made available for information, data, and views. The Center Public Reading Room is open public viewing in EPA’s electronic document contains draft water quality from 8:30 a.m. to 4:30 p.m., Monday public docket as EPA receives them and criteria recommendations for the through Friday, excluding legal without change, unless the data or protection of freshwater and saltwater holidays. The telephone number for the information contains copyrighted aquatic life. EPA is soliciting Public Reading Room is (202) 566–1744, material, CBI, or other information information, data, and views on issues and the telephone number for the Water whose disclosure is restricted by statute. of science pertaining to the information Docket is (202) 566–2426. Alternatively, When EPA identifies copyrighted the Agency used to derive the draft copies of the draft may be obtained from material, EPA will provide a reference criteria. When completed and published EPA’s Water Resource Center by phone to that material in the version of the in final form, the revised criteria will at (202) 566–2426, or by e-mail to document that is placed in EPA’s replace EPA’s current recommended [email protected] or by electronic public docket. The entire aquatic life criteria for selenium. EPA’s conventional mail to: EPA Water printed document, including the recommended water quality criteria Resource Center, 4101T, 1200 copyrighted material, will be available provide technical information for states Pennsylvania Avenue NW., Washington, in the public docket. and authorized tribes in adopting water DC 20460. Data, information, and views quality standards, but themselves have 2. Electronic Access. Use http:// submitted on computer disks that are no binding legal effect. www.epa.gov/waterscience/criteria/ mailed or delivered to the docket will be DATES: Scientific views, data, and aqlife.html to obtain the draft document. transferred to EPA’s electronic public information should be submitted by Use http://www.epa.gov/fedrgstr/ to docket. Data, information, and views April 18, 2005. obtain this Federal Register document that are mailed or delivered to the electronically. Docket will be scanned and placed in ADDRESSES: Scientific information, data, An electronic version of the public EPA’s electronic public docket. Where and views may be submitted docket is available through EPA’s practical, physical objects will be electronically, by mail, or through hand- electronic public docket and comment photographed, and the photograph will delivery/courier. Follow detailed system, EPA Dockets. You may use EPA be placed in EPA’s electronic public instructions provided in section C of the Dockets at http://www.epa.gov/edocket/ docket along with a brief description SUPPLEMENTARY INFORMATION section. to access the index listing of the written by the docket staff. FOR FURTHER INFORMATION CONTACT: contents of the official public docket Charles Delos, e-mail and to access those documents in the C. How Do I Submit Scientific [email protected] or postal address, public docket that are available Information, Data, or Views? Mail Code 4304T, U.S. EPA, 1200 electronically. Although not all docket You may submit scientific Pennsylvania Avenue NW., Washington, materials may be available information, data, or views DC 20460 at (202) 566–1097. electronically, you may still access any electronically, by mail, or through hand SUPPLEMENTARY INFORMATION: of the publicly available docket delivery/courier. To ensure proper materials through the docket facility receipt by EPA, identify the appropriate A. Which Entities Might Be Interested? identified in section B.1. Once in the docket identification number in the Entities potentially interested in system, select ‘‘search,’’ then key in the subject line on the first page. today’s notice are those that discharge appropriate docket identification 1. Electronically. EPA recommends or release selenium to surface waters, number. that you include your name and mailing and federal, state, tribal, and local Certain types of information will not address, or e-mail address or other authorities that regulate selenium levels be placed in the EPA Dockets. contact information, particularly if you in surface water. Categories and entities Information claimed as Confidential submit data in tables or figures. Also interested in today’s notice include but Business Information (CBI) and other include this contact information on the are not limited to: information whose disclosure is outside of any disk or CD ROM you restricted by statute, which is not submit, and in any cover letter Category Examples of inter- included in the official public docket, accompanying the disk or CD ROM. ested entities will not be available for public viewing This ensures that you can be identified in EPA’s electronic public docket. EPA’s as the submitter and allows EPA to State/Local/Tribal States, municipalities, Government. tribes. policy is that copyrighted material will contact you in case EPA has technical Industry ...... Mining, coal-fired not be placed in EPA’s electronic public difficulties reading your submission or power generation. docket but will be available only in needs further information on the Agriculture ...... Irrigated agriculture. printed, paper form in the official public substance of your submission. EPA’s docket. To the extent feasible, publicly policy is that EPA will not edit your This table is not intended to be available docket materials will be made submission, and any identifying or exhaustive. Other types of entities not available in EPA’s electronic public contact information provided in the listed in the table may also be docket. When a document is selected body of the submission will be included interested. from the index list in EPA Dockets, the in the official public docket, and made system will identify whether the available in EPA’s electronic public B. How Can I Get Copies of the Draft document is available for viewing in docket. If EPA cannot read your Document and Related Information? EPA’s electronic public docket. submission due to technical difficulties 1. Docket. EPA has established an Although not all docket materials may and cannot contact you for clarification, official public docket for this action be available electronically, you may still EPA may not be able to consider it. under Docket ID No. OW–2004–0019. access any of the publicly available i. EPA Dockets. Your use of EPA’s The official public docket is the docket materials through the docket electronic public docket to submit data, collection of materials that are available facility identified in section B.1. information, and views to EPA for public viewing at the Water Docket It is important to note that EPA’s electronically is EPA’s preferred method in the EPA Docket Center, EPA West, policy is that data, information, and for receiving submissions. Go directly to
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EPA Dockets at http://www.epa.gov/ regulatory controls on the discharge or to exposure of selenium-bearing soil or edocket and follow the online release of pollutants and other rock to weathering). instructions. Once in the system, select alterations of water quality. EPA’s F. What Has EPA Done in the Past on ‘‘search,’’ and then key in Docket ID No. section 304(a) criteria also provide a the Aquatic Life Criteria for Selenium? OW–2004–0019. The system is an scientific basis for EPA to develop any ‘‘anonymous access’’ system, which necessary federal water quality EPA’s currently-recommended means EPA will not know your identity, regulations under section 303(c) of the aquatic life water quality criteria for e-mail address, or other contact CWA. selenium were published in 1987. EPA information unless you provide it. The draft criteria in today’s notice are made minor adjustments in the criteria ii. E-mail. Submissions may be sent based on the factors specified in section concentrations when it converted the by electronic mail (e-mail) to ow- 304(a) of the Clean Water Act, including selenium criteria from a total [email protected] attention Docket ID No. the kind and extent of effects of the recoverable (dissolved plus particulate) OW–2004–0019. In contrast to EPA’s pollutant on human health and aquatic measurement basis to a dissolved electronic public docket, EPA’s e-mail organisms. Under the Clean Water Act, measurement basis in 1995 and 1999 as system is not an ‘‘anonymous access’’ the EPA can not consider the economic follows: (a) In 60 FR 15366, March 23, system. If you send an e-mail directly to and technical feasibility of meeting the 1995, only for the Great Lakes Initiative; the Docket without going through EPA’s draft criteria in their development. (b) in 60 FR 22228, May 4, 1995, only electronic public docket, EPA’s e-mail Economic and technical feasibility for the saltwater criteria; and (c) in 64 system automatically captures your e- factors are considered by states and FR 19781, April 22, 1999, optionally for mail address. E-mail addresses that are tribes when they adopt water quality freshwater nationwide. automatically captured by EPA’s e-mail criteria into their water quality In 1996, EPA proposed but did not system are included as part of the standards under section 303(c) of the complete an additional change in the submission that is placed in the official Act and when states, tribes, and EPA freshwater acute criterion for the Great public docket, and made available in consider variance requests for regulatory Lakes system (61 FR 58444, November EPA’s electronic public docket. controls. Moreover, states and tribes 14, 1996). In 2000, EPA revoked the iii. Disk or CD ROM. You may send may also consider alternative existing acute criterion for the Great your submission on a disk or CD ROM scientifically-defensible approaches to Lakes system (65 FR 35283, June 2, to the mailing address identified in adopting criteria into their water quality 2000) in response to a lawsuit section B.1. These electronic standards that may be different from challenging the use of a single acute submissions will be accepted in approaches presented by EPA in final criterion applicable to selenite and WordPerfect or ASCII file format. Avoid water quality criteria published under selenate, the two common chemical the use of special characters and any section 304(a). forms of selenium (see AISI v. EPA, 115 form of encryption. F. 3d 979 (D.C. Cir. 1997)). 2. By Mail. Send an original and three E. What Is Selenium and Why Are We EPA’s most recent compilation of copies of your submission to: Water Concerned About It? Docket, Environmental Protection criteria presents (a) the above- Agency, Mailcode: 4101T, 1200 Selenium is a naturally-occurring mentioned 1996 GLI proposed Pennsylvania Ave., NW., Washington, element that is nutritionally essential. freshwater acute criteria, (b) the 1987 DC 20460, Attention Docket ID No. OW– However, it has been toxic to aquatic freshwater chronic criterion, and (c) the 2004–0019. life and terrestrial wildlife where 1987 saltwater acute and chronic 3. By Hand Delivery or Courier. concentrations were excessive. Under criteria as converted to dissolved in Deliver your submission to: EPA Docket real-world field conditions, aquatic life 1995. You can find the compilation at Center (EPA/DC), EPA West, Room is exposed to selenium primarily www.epa.gov/waterscience/standards/ B102, 1301 Constitution Ave., NW., through the diet. When the input of a wqcriteria.html. Washington, DC 20460, Attention toxic substance to an organism is greater In 1998 EPA held a peer consultation Docket ID No. OW–2004–0019. Such than the rate at which the substance is workshop to evaluate possible courses deliveries are only accepted during the lost, the organism is said to of action regarding the selenium aquatic Docket’s normal hours of operation as bioaccumulate that substance. Although life criterion and notified the public of identified in section B.1. selenium bioaccumulates in aquatic our intent to review the selenium organisms, it is not significantly criteria. In 1999, EPA announced its D. What Are EPA Recommended Water biomagnified. That is, concentrations do intention to revise its national aquatic Quality Criteria? not increase significantly in aquatic life criterion for selenium and requested An EPA recommended water quality organisms at each successive level of the data (64 FR 58409, October 29, 1999). criterion is a level of a pollutant or other food chain. For aquatic life, the lowest In 2002, EPA prepared an early draft measurable substance in water that, toxic thresholds (the smallest levels at revision of its aquatic life criteria when met, will protect aquatic life and/ which toxic effects are noticeable) are document and submitted it to peer or human health. Section 304(a) of the generally associated with effects on review (Versar 2002, Lemly 2004). EPA Clean Water Act (CWA) requires EPA to larval offspring of the adult fish that considered the comments and develop and publish and, from time to were exposed to excessive selenium or suggestions submitted by the peer time, revise, recommended water with effects on juvenile fish. reviewers (U.S. EPA 2004b) and made quality criteria to accurately reflect the Being a natural element, selenium is many technical and scientific changes latest scientific knowledge. Water everywhere in the environment. in response (U.S. EPA 2004a). In the quality criteria developed under section Concerns about too much selenium in future, EPA will review any scientific 304(a) provide guidance to states and water have most often been associated information, data, and views submitted tribes in adopting water quality criteria with irrigation return flows from soils in response to today’s notice. The into their water quality standards under that are naturally high in selenium, ash Agency will also continue to work section 303(c). Once adopted by a state pond discharges from coal-fired power closely with the U.S. Fish and Wildlife or tribe, the water quality standards plants (due to the selenium content of Service and other key federal agencies then are a basis for developing coal), and certain mining activities (due to arrive at final water quality criteria
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for selenium which are protective of organisms due to long-term excessive concentration better reflects site-specific aquatic life. exposure to selenium in the aquatic exposure and risk than does the water Today’s announcement of the draft food chain. The draft acute exposure concentration. Therefore, using the fish- aquatic life criteria document for recommendations are designed to tissue approach allows users to consider selenium has no effect on EPA’s human protect against lethality or site-specific factors in translating to a health criteria recommendation for immobilization of aquatic organisms water concentration. selenium published in 2002 (see http:/ due to brief elevated exposure to However, consistent with the type of /epa.gov/waterscience/standards/ selenium in water. toxicity tests used for their derivation, wqcriteria.html). Although the draft recommendation the draft aquatic life criteria to protect took into account dietary exposure for against the acute effects of selenium in G. What Are the Draft Aquatic Life aquatic life, no nationally-applicable fresh water and salt water are expressed Criteria Values? scientific methodology yet exists to as traditional water concentrations (total The draft selenium criteria derive national water quality criteria to recoverable selenium). Expanding the recommendations state that freshwater protect birds or terrestrial wildlife that toxicity database with a substantial aquatic life should be protected under consume fish, water, or aquatic plants number of more recent acute toxicity the following conditions: and organisms that contain selenium. tests yielded relatively little change in A. The concentration of selenium in Therefore, this draft selenium the freshwater selenite criterion, but whole-body fish tissue is not more than recommendation is not designed to yielded a substantial increase in the 7.91 µg/g (micrograms per gram) dw protect birds or terrestrial wildlife. selenate criterion due to repeated (dry weight). This is the chronic (Similarly, EPA’s existing 1987 water retesting of an amphipod that formerly exposure criterion. In addition, if quality criteria for selenium were not appeared to have an anomalously low whole-body fish tissue concentrations designed to protect birds or wildlife.) LC50, and due to normalization of the exceed 5.85 µg/g dw during summer or However, EPA is working with the U.S. acute data for sulfate concentration. fall, fish tissue should be monitored Fish and Wildlife Service and other Normalization of all acute test results during the winter to determine whether interested federal agencies to develop for sulfate concentration reveals that the selenium concentration exceeds 7.91 selenium criteria protective of wildlife some species formerly thought to be µg/g dw. within the State of California. The highly sensitive were actually tested at B. The 24-hour average concentration California-specific wildlife criteria effort low sulfate. Including sulfate in the of total recoverable (dissolved and is separate from the national-scale draft draft criteria formula assures their particulate) selenium in water seldom aquatic life criteria announced in protection at low sulfate concentrations. (e.g., not more than once in three years) today’s notice. Its development is on a Expansion of the database caused the exceeds 258 µg/L for selenite, and different time track; it involves analysis saltwater selenite criterion to decrease likewise seldom exceeds the numerical of toxicity data for aquatic-dependent because a scallop, formerly untested, value given by wildlife (not aquatic life); and it is was found to be highly sensitive. A exp(0.5812[ln(sulfate)]+3.357) for intended to apply only to California. saltwater chronic criterion is not selenate. These are the acute exposure presented in the draft announced today, criteria. At an example sulfate I. How Do the Draft Aquatic Life Criteria Recommendations Differ From because EPA lacks sufficient and concentration of 100 mg/L, the 24-hour appropriate data to derive one. average selenate concentration should Previous Criteria Recommendations? not exceed 417 µg/L. Sulfate is a In contrast to the existing 1987 J. Are There Particular Issues on Which commonly measured water quality freshwater chronic criterion, which was EPA is Requesting Scientific parameter that has been found to have expressed as a conventional water Information, Data, and Views? a mitigating influence on the acute concentration, the draft freshwater EPA is requesting information, data, toxicity of the selenate form of chronic criterion sent to peer review in and views on all facets of the science selenium. 2002 and the draft criterion announced supporting the draft criteria Likewise, the draft selenium criteria in today’s notice are each expressed as recommendations for selenium, but it is recommendations state that saltwater a whole-body fish tissue concentration particularly interested in the following aquatic life should be protected from (µg selenium per gram of fish tissue on topics: acute effects of selenium if the 24-hour a dry weight basis). At a given location average concentration of selenite seldom or for a given water body, a fish tissue 1. The Appropriateness of Basing the exceeds 127 µg/L. Because selenium level of selenium can be used with a Freshwater Chronic Criterion on a might be as chronically toxic to site-specific bioaccumulation factor to Tissue Concentration saltwater fishes as it is to freshwater estimate the concentration of selenium Because the same water concentration fishes, the fish community should be in the water. A bioaccumulation factor may yield different amounts of monitored if selenium exceeds 5.85 is a measured or predicted ratio between bioaccumulation and therefore different µg/g dw in summer or fall or 7.91 the tissue concentration and the water levels of risk at different sites, EPA µg/g dw during any season in the whole- concentration of a chemical, in this developed this draft criterion as a fish body tissue of saltwater fishes. case, selenium. tissue concentration to reduce the need Early in the process of developing for resetting the criterion on a site-by- H. What Would the Draft Aquatic Life these draft criteria, EPA concluded, and site basis. Where translation from the Criteria Recommendations Protect? the peer reviewers agreed that a fish- tissue benchmark to a water The draft selenium criteria tissue approach is better than a concentration is needed, a recommendations were derived from conventional water concentration bioaccumulation factor (BAF), which data on aquatic life and are intended to approach to protect aquatic life from the may vary substantially from site to site, protect aquatic life. Specifically, the chronic adverse effects of selenium. would need to be established. draft chronic exposure recommendation Because fish and aquatic invertebrates Participants in the 1998 Peer is designed to protect against mortality, are exposed to selenium primarily Consultation Workshop suggested that a reproductive interferences, and growth through their diet rather than directly tissue-based approach for a selenium abnormalities in fish and other aquatic through water, the fish-tissue aquatic life criterion would be feasible
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(U.S. EPA 1998). The underlying exposure) and one elevated selenium particularly interested in field concept is different from that used exposure level, both subjected either to observations (such as age structure or historically for developing aquatic life (a) a temperature regime of 20 °C for 180 species occurrence) that may be relevant criteria that are applied to the water days, or (b) a temperature regime to the selenium winter exposure issue column, the surrounding environment changing from 20 °C to 4 °C over the under various climatic conditions. EPA shared by a range of aquatic species. course of 60 days, and remaining at 4 °C is also requesting scientific information, Nevertheless, this tissue-based approach for the remaining 120 days of the study. data, and views on (c) approaches for appears to be appropriate because, at He observed substantially less survival accounting for different climatic concentrations not far above the draft when elevated selenium was combined conditions. criterion, selenium is toxic to the with low temperature. The whole body 3. Alternative Values for the Freshwater offspring (embryos, larvae, or juveniles) concentration associated with mortality Chronic Criterion of sensitive species, but not to the adult was 5.85 µg/g at Day 60 just prior to a fish that might be present and from significant increase in mortality, and The current draft criteria document which an environmental sample could 7.91 µg/g later in the study during and has set the aquatic life criterion for be taken. subsequent to the death of 40% of the selenium at a whole body fish tissue EPA is requesting scientific organisms. For the same selenium concentration of 7.91 µg/g, with the information, data, and views on (a) the exposure at 20 °C, mortality was 6% and provision that winter monitoring should concept of protecting aquatic life by whole body concentrations were 5.74 be performed if summer or fall tissue applying a criterion to whole-body fish µg/g. Little mortality was observed at levels exceed 5.85 µg/g. EPA is tissue concentrations of selenium, (b) either temperature regime for requesting information and analyses the appropriateness of applying a fish unexposed organisms, but since there relevant to alternative fish tissue tissue-based water quality criterion was only one selenium treatment, no benchmarks. EPA will only consider uniformly across waterbodies to protect concentration-response curve can be analyses that have a formal, fully sensitive species, and (c) the possibility constructed. transparent, and reproducible derivation of applying the same criterion to One possible implication of the Lemly from laboratory or field data, where all invertebrate tissue where invertebrate (1993) study might be that effects on the supporting information quantifies a samples are obtained with or in place of overwinter survival of juveniles occur at toxic effect metric and an exposure fish tissue samples. lower concentrations than do effects on metric. Because EPA has not yet made reproduction or early life stages. In the EPA is also receptive to formally- decisions on the form or values of its Monticello macrocosm study, at 4 to 5°C derived benchmarks applicable to other final water quality criteria for selenium, overwinter conditions, reproductive aquatic media, such as water, sediment, EPA has not yet developed success and adult bluegill overwinter or prey tissue. Again, the derivations implementation procedures. Therefore, survival were unaffected at should be transparent and fully EPA is also interested in scientific concentrations higher than those of the reproducible from laboratory or field information, data, and views on (d) Lemly (1993) study (Hermanutz et al. data. approaches for sampling tissues, and (e) 1996, corrected by Tao et al. 1999, and 4. Site-Specific Factors Affecting the available data for deriving localized peer reviewed in Versar 2000). Freshwater Chronic Criterion BAF values for translating the tissue Based on the Lemly (1993) results, to concentrations to water concentrations, protect sensitive fish species under Expressing the chronic criterion as a where needed for pollution control winter conditions, EPA has set the draft tissue concentration rests on the decisions. criterion at 7.91 µg/g, the concentration assumption that there is reasonable measured during the period of reduced geographic uniformity in the tissue 2. Studies of Freshwater Aquatic Life survival, with the provision that winter threshold, while the BAF, and therefore Effects and Chronic Effect monitoring should be performed if the water concentration threshold, may Concentrations summer or fall tissue levels exceed 5.85 vary considerably across sites. EPA Based on studies involving exposure µg/g, the concentration occurring prior believes that the route of exposure through a contaminated diet, the genus to the period of reduced survival. Three affects the tissue threshold. The same mean chronic EC20 (concentration of five peer reviewers of the 2002 draft tissue concentration, if accumulated effecting 20% of test organisms) for questioned whether the results from through water-only exposure, appears to effects on larval or juvenile common only one study should be used as the be more toxic than if accumulated via sunfish (Lepomis) was found to be 9.5 basis for lowering the nationally diet. Fish provided with an µg/g dry weight whole body recommended criteria from 9.5 µg/g to uncontaminated diet and exposed to concentration of selenium in the adult 7.91 µg/g as EPA has done in this very high water concentrations of parental fish or in the juveniles document. On the other hand, U.S. Fish selenium (for example, 300 µg/L in the (depending on the study). This genus and Wildlife Service (White 2002) has Cleveland et al. (1993) study) may show mean value is based on four studies. No questioned whether 7.91 µg/g is effects when whole body concentrations data indicated that other genera were sufficiently protective, citing the high exceed only 4 µg/g. When exposed more sensitive than Lepomis. Useful mortality observed at that tissue through a contaminated diet but chronic toxicity data were available for concentration during the study. essentially uncontaminated water in the a rotifer (a small invertebrate), chinook EPA is requesting scientific same study, effects were not observed salmon, rainbow trout, cutthroat trout, information, data, and views on (a) the until tissue concentrations exceeded fathead minnow, flannelmouth sucker, most appropriate interpretation and use around 13 µg/g. razorback sucker, stripped bass, and a of the Lemly (1993) results, and its Because EPA did not use studies mixture of sunfish. applicability to a range of climatic involving uncontaminated diets coupled One of the above studies was by regimes and fisheries types and (b) other with high water exposures, the criterion Lemly (1993), who investigated data that may be relevant to the winter assumes that the dominant overwinter survival of juvenile bluegill exposure issue. Because EPA expects it environmental exposure route for the in the laboratory. This study consisted has seen all the available laboratory target species is dietary. Consistent with of a control (only background selenium studies relevant to the issue, it is the views of the EPA peer consultation
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workshop in 1998, EPA believes that the water concentration) is of less FEDERAL RESERVE SYSTEM this assumption corresponds to the real- concern than chronic exposure through world problems of selenium the food chain. Agency Information Collection Activities: Proposed Collection; contamination. Nevertheless, a large body of toxicity Comment Request While recognizing that the BAF can test data are available for brief water- vary from site to site, EPA is requesting only exposure. Therefore, EPA was able scientific information, data, and views AGENCY: Board of Governors of the to derive acute criteria to protect aquatic Federal Reserve System on the general approach of using a life against the toxic effects of that type uniform tissue benchmark (expressed as SUMMARY: On June 15, 1984, the Office of exposure to selenium. For ambient of Management and Budget (OMB) total selenium concentration in whole freshwater, the draft selenite or Se (IV) body) without regard to site differences µ delegated to the Board of Governors of acute criterion is 258 g/L, and the draft the Federal Reserve System (Board) its that might include: sulfate-dependent selenate or Se (VI) • The species to be protected, µ approval authority under the Paperwork • criterion ranges from 109 to 1590 g/L Reduction Act, as per 5 CFR 1320.16, to The type of water body, at sulfate concentrations from 10 to • The character of the food web, for approve of and assign OMB control 1000 mg/L. For ambient saltwater the example, autochthonous versus numbers to collection of information draft selenite acute criterion is 127 µg/ nonseleniferous allochthonous, requests and requirements conducted or L. • The form and concentration of sponsored by the Board under selenium in the water or diet, EPA is requesting scientific conditions set forth in 5 CFR 1320 • The form of selenium in the information, data, and views on the Appendix A.1. Board–approved sampled tissue, appropriateness of the draft values for collections of information are • The nature of the selenium release, the acute exposure criteria. incorporated into the official OMB • Interactions with other trace References inventory of currently approved elements, collections of information. Copies of the • Acclimation or adaptation, Hermanutz, R.O., K.N. Allen, N.E. OMB 83–Is and supporting statements • Hormesis, Detenbeck, and C.E. Stephan. 1996. Exposure and approved collection of information to bluegill (Lepomis macrochirus) to • Climatic conditions, and instruments are placed into OMB’s selenium in outdoor experimental streams. • Any other relevant site factors. public docket files. The Federal Reserve EPA is also requesting scientific U.S. EPA Report. Mid-Continent Ecology Division, Duluth, MN. may not conduct or sponsor, and the information, data, and views relevant to respondent is not required to respond the need for and appropriate basis for Lemly, A.D. 1993. Metabolic stress during winter increases the toxicity of selenium to to, an information collection that has adjusting the tissue benchmark to fish. Aquat. Toxicol. (Amsterdam) 27(1– been extended, revised, or implemented account for site-specific factors. 2):133–158. on or after October 1, 1995, unless it 5. Saltwater Chronic Criterion Lemly, D. 2004. Letter to Denise Keehner. displays a currently valid OMB control U.S. Department of Agriculture, Forest number. For chronic exposure, we found no Service. June 22, 2004. Request for comment on information data that were useful for deriving a Tao, J., P. Kellar, and W. Warren-Hicks. saltwater aquatic life criterion. 1999. Statistical analysis of selenium toxicity collection proposal However, selenium might be as toxic in data. Report submitted for U.S. EPA, Health The following information collection, the tissues of saltwater organisms as it and Ecological Criteria Division. The Cadmus which is being handled under this is in the tissues of freshwater organisms. Group, Inc., Durnham, NC. delegated authority, has received initial Therefore, the draft contains the U.S. EPA. 1998. Report on the peer Board approval and is hereby published cautionary recommendation that the consultation workshop on selenium aquatic for comment. At the end of the comment status of the saltwater fish community toxicity and bioaccumulation. Office of period, the proposed information be monitored if selenium exceeds 5.85 Water. EPA–822–R–98–007. collection, along with an analysis of µ U.S. EPA. 2004a. Draft aquatic life water g/g dw in summer or fall or 7.91 dw comments and recommendations during any season (same as the quality criterion for selenium—2004. Office of Water. EPA–822–D–04–001. received, will be submitted to the Board freshwater benchmarks) in the whole- for final approval under OMB delegated body tissue of saltwater fishes. U.S. EPA. 2004b. Draft response to peer review of 2002 update aquatic life water authority. Comments are invited on the EPA is requesting scientific following: information, data, or views on (a) quality criteria for selenium. Office of Water. a. whether the proposed collection of toxicity thresholds applicable to Versar. 2000. Peer review of statistical analysis of selenium toxicity data. Report information is necessary for the proper protecting saltwater organisms exposed submitted to U.S. EPA, Office of Water, performance of the Federal Reserve’s to selenium through the food chain, or Washington, DC. functions; including whether the (b) the appropriateness of extending to Versar. 2002. Peer review of 2002 update information has practical utility; saltwater what is known about aquatic life water quality criteria for freshwater toxicity thresholds. b. the accuracy of the Federal selenium. Report submitted to U.S. EPA, Reserve’s estimate of the burden of the 6. Acute Criteria Concentrations Office of Water, Washington, DC. proposed information collection, White, W. 2002. Letter to Geoffrey H. including the validity of the As discussed above, selenium toxicity Grubbs. U.S. Department of Interior, Fish and methodology and assumptions used; problems have generally involved Wildlife Service, California/Nevada contamination of the food web. If the Operations Office, Sacramento, CA. May 15, c. ways to enhance the quality, utility, diet of the target species is not 2002. and clarity of the information to be contaminated, very high water-column collected; and Dated: December 9, 2004. concentrations are needed to bring out d. ways to minimize the burden of effects, particularly when exposure is Geoffrey H. Grubbs, information collection on respondents, brief. As with bioaccumulative Director, Office of Science and Technology. including through the use of automated pollutants in general, acute toxicity (that [FR Doc. 04–27665 Filed 12–16–04; 8:45 am] collection techniques or other forms of is, toxicity from a brief sharp increase in BILLING CODE 6560–50–P information technology.
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DATES: Comments must be submitted on Annual reporting hours: 125 hours A. Background or before February 15, 2005. Estimated average hours per response: After an analysis of the per diem rates ADDRESSES: You may submit comments, 15 minutes established for FY 2005 (see the Federal Number of respondents: biweekly, 10; identified by FR 1374, by any of the Register notices at 69 FR 53071, August semiannually, 120 following methods: 31, 2004, and 69 FR 60152, October 7, • General description of report: This Agency Web Site: http:// 2004), the per diem rate is being information collection is voluntary (12 www.federalreserve.gov. Follow the changed in the following locations: instructions for submitting comments at U.S.C. §§ 225a and 263) and is given http://www.federalreserve.gov/ confidential treatment (5 U.S.C. State of Colorado generalinfo/foia/ProposedRegs.cfm. 552(b)(4)). • City of Aurora • Federal eRulemaking Portal: http:// Abstract: The survey data are used by www.regulations.gov. Follow the the Federal Reserve to gather State of Florida instructions for submitting comments. information specifically tailored to the • Brevard County • E–mail: Federal Reserve’s policy and operational [email protected]. responsibilities. It is necessary to State of Texas Include docket number in the subject conduct the survey biweekly to keep up • Dallas County line of the message. with the rapidly changing developments • FAX: 202/452–3819 or 202/452– in the economy and to provide timely B. Procedures 3102. information to staff and Board members. Per diem rates are published on the • Mail: Jennifer J. Johnson, Secretary, Usually, the surveys are conducted by Internet at www.gsa.gov/perdiem as an Board of Governors of the Federal staff economists telephoning purchasing FTR Per Diem Bulletin and published in Reserve System, 20th Street and managers, economists, or other the Federal Register on a periodic basis. Constitution Avenue, N.W., knowledgeable individuals at selected, This process ensures timely increases or Washington, DC 20551. relevant businesses. The frequency and decreases in per diem rates established All public comments are available content of the questions, and the by GSA for Federal employees on from the Board’s web site at businesses contacted would vary official travel within CONUS. Notices www.federalreserve.gov/generalinfo/ depending on changing developments published periodically in the Federal foia/ProposedRegs.cfm as submitted, in the economy. Register, such as this one, now except as necessary for technical Board of Governors of the Federal Reserve constitute the only notification of reasons. Accordingly, your comments System, December 14, 2004. revisions in CONUS per diem rates to will not be edited to remove any Jennifer J. Johnson, agencies. identifying or contact information. Secretary of the Board. Dated: Decenber 13, 2004. Public comments may also be viewed electronically or in paper in Room MP– [FR Doc. 04–27654 Filed 12–16–04; 8:45 am] Thomas J. Horan, 500 of the Board’s Martin Building (20th BILLING CODE: 6210–01–S Deputy to the Deputy Associate and C Streets, N.W.) between 9:00 a.m. Administrator, Office of Transportation and Personal Property. and 5:00 p.m. on weekdays. GENERAL SERVICES [FR Doc. 04–27605 Filed 12–16–04; 8:45 am] FOR FURTHER INFORMATION CONTACT: A ADMINISTRATION copy of the proposed form and BILLING CODE 6820–14–S instructions, the Paperwork Reduction Federal Travel Regulation (FTR) Act Submission (OMB 83–I), supporting statement, and other documents that Maximum Per Diem Rates for OFFICE OF GOVERNMENT ETHICS Colorado, Florida and Texas will be placed into OMB’s public docket Proposed Collection; Comment files once approved may be requested AGENCY: Office of Governmentwide Request for Unmodified Public from the agency clearance officer, whose Policy, General Services Administration Financial Disclosure Access Customer name appears below. (GSA). Service Survey Cindy Ayouch, Federal Reserve Board ACTION: Notice of Per Diem Bulletin 05– Clearance Officer (202–452–3829), 3, revised continental United States AGENCY: Office of Government Ethics Division of Research and Statistics, (CONUS) per diem rates. (OGE). Board of Governors of the Federal ACTION: Notice. Reserve System, Washington, DC 20551. SUMMARY: The General Services Telecommunications Device for the Deaf Administration (GSA) has reviewed the SUMMARY: After this first round notice (TDD) users may contact (202–263– lodging rates of certain locations in the and public comment period, OGE plans 4869), Board of Governors of the Federal States of Colorado, Florida and Texas to submit the Public Financial Reserve System, Washington, DC 20551. and determined that they are Disclosure Access Customer Service Survey form to the Office of Proposal to approve under OMB inadequate. The per diems prescribed in Management and Budget (OMB) for delegated authority the extension for Bulletin 05–3 may be found at http:// three-year extension of approval under three years, without revision, of the www.gsa.gov/perdiem. the Paperwork Reduction Act. OGE is following report: DATES: This notice is effective December 17, 2004 and applies to travel performed proposing no changes to the survey Report title: Intermittent Survey of on or after December 27, 2004. form. Businesses Agency form number: FR 1374 FOR FURTHER INFORMATION CONTACT: For DATES: Comments by the public and OMB control number: 7100–0302 clarification of content, contact Lois agencies on this proposed information Frequency: Biweekly and Mandell, Office of Governmentwide collection extension are invited and semiannually Policy, Travel Management Policy, at should be received by March 2, 2005. Reporters: Purchasing managers, (202) 501–2824. Please cite FTR Per ADDRESSES: Comments should be sent economists, or other knowledgeable Diem Bulletin 05–3. to: Mary T. Donovan, Office of individuals at business firms SUPPLEMENTARY INFORMATION: Administration and Information
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Management, U.S. Office of Government maintain its current high-level of possibility of use of information Ethics, Suite 500, 1201 New York customer satisfaction in this area. technology). Avenue, NW., Washington, DC 20005– OGE is issuing this first round After this notice and comment period, 3917. Comments may also be sent Federal Register notice to announce its OGE will submit the survey form to electronically to OGE’s e-mail address at forthcoming request to OMB for OMB for review and three-year [email protected] (for e-mail messages, the paperwork renewal of the survey form extension of approval under the subject line should include the with no modifications. If OGE’s current provisions of the Paperwork Reduction following reference—‘‘Public Financial stock of survey forms is depleted within Act. At that time, OGE will also publish Disclosure Access Customer Service the next three years, OGE plans to a second paperwork notice in the Survey’’). reprint the form with two minor Federal Register to inform the public modifications (with notice to OMB at FOR FURTHER INFORMATION CONTACT: Ms. and Federal agencies. Comments that time) without further paperwork Donovan at the U.S. Office of received in response to this notice will clearance. These modifications are: Government Ethics; telephone: 202– be summarized for, and may be updating the OGE address from ‘‘Attn: 482–9232; TDD: 202–482–9293; FAX: included with, the forthcoming OGE FDD’’ to ‘‘Attn: PSD’’ and, in the public 202–482–9237. A copy of the Public request for OMB three-year paperwork burden statement, change ‘‘Associate Financial Disclosure Access Customer approval. They will also be explained in Director for Administration’’ to ‘‘Deputy Service Survey form may be obtained, the second round notice. The comments Director for Administration and without charge, by contacting Ms. will also become a matter of public Information Management.’’ record. Donovan. The current paperwork approval is SUPPLEMENTARY INFORMATION: The Office scheduled to expire at the end of March Approved: December 9, 2004. of Government Ethics uses the Public 2005. Pursuant to the Paperwork Marilyn L. Glynn, Financial Disclosure Access Customer Reduction Act (44 U.S.C. chapter 35), Acting Director, Office of Government Ethics. Service Survey form (OMB control OGE is not including in its public [FR Doc. 04–27644 Filed 12–16–04; 8:45 am] number 3209–0009) to assess requester burden estimate for the survey form the BILLING CODE 6345–02–P satisfaction with the service provided by limited number of access requests filed OGE in responding to requests by by other Federal agencies or Federal members of the public for access to employees. Nor is OGE including in that copies of Standard Form (SF) 278 estimate, the limited number of requests DEPARTMENT OF HEALTH AND Executive Branch Personnel Public for copies of other records covered HUMAN SERVICES Financial Disclosure Reports on file under the special Ethics Act public with OGE. Most of the SF 278 reports access provision (such as certificates of Administration for Children and available at OGE are those filed by divestiture) since the survey form is Families executive branch Presidential only sent to persons who request copies appointees subject to Senate of SF 278 reports. Proposed Information Collection confirmation. Requests for access to SF As so defined, OGE’s estimate for the Activity; Comment Request 278 reports are made pursuant to the total number of survey forms to be filed Proposed Projects special public access provision of annually at OGE over the next three section 105 of the Ethics in Government years by members of the public Title: LIHEAP Quarterly Allocation Act of 1978 (the Ethics Act), as codified (primarily by news media Estimates. at 5 U.S.C. appendix section 105, and representatives, public interest group OMB No.: 0970–0037. procedures in 5 CFR 2634.603 of OGE’s members and private citizens) is 30. Description: The Low Income Home executive branchwide regulations. This estimate is based on a calculation Energy Assistance Program (LIHEAP) Requesters ask for copies of SF 278 of the number of survey forms received Quarterly Allocation Estimates Form– reports by completing an OGE Form at OGE between January 2001 and 535 is a one-page form that is sent to 50 201, ‘‘Request to Inspect or Receive October 2004 (112 survey forms). This State grantees and the District of Copies of SF 278 Executive Branch estimate is 20 less than that for the prior Columbia. It is also sent to Tribal Personnel Public Financial Disclosure three-year period. The estimated average grantees that receive over $1 million Reports or Other Covered Records.’’ amount of time to read the instructions annually and who directly administer OGE distributes the survey forms to and complete the survey form, remains the LIHEAP Program. Grantees are asked requesters along with copies of the same at three minutes. Thus, the to complete and submit the form in the requested SF 278 reports. OGE notes new overall estimated annual public 4th quarter of each fiscal year. The data that the survey form is only authorized burden for the OGE Public Financial collected on the form are the grantee’s for its own use, not by other agencies Disclosure Access Customer Service estimates of obligations that they expect throughout the executive branch. The Survey form will be two hours (rounded to make each quarter during the instructions on the survey form ask the up from one and a half hours (30 forms upcoming fiscal year. This is the only requester to complete and return the × 3 minutes per form)). method used to request anticipated survey form to OGE via the self- Public comment is invited on all distribution of the grantee’s LIHEAP contained postage-paid postcards (the aspects of the survey form as proposed funds for the program year. The reverse side of the survey form, when for renewal including specifically views information is used to disburse LIHEAP folded, becomes a pre-addressed on: the accuracy of OGE’s public burden funds in accordance with grantee needs postcard). The purpose of the survey estimate; the potential for enhancement and to develop OMB apportionment form is to determine through customer of quality, utility and clarity of the requests. responses how well OGE is responding information to be collected; and the Respondents: State, local or tribal to such requests and how OGE can minimization of burden (including the govt.
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ANNUAL BURDEN ESTIMATES
No. of re- Average No. of sponses burden Total bur- Instrument respondents per respond- hours per den hours ent response
Form ACF–535 ...... 55 1 .25 13.75
Estimated Total Annual Burden Hours: ...... 13.75
In compliance with the requirements DEPARTMENT OF HEALTH AND care for Early Head Start children in of section 3506(c)(2)(A) of the HUMAN SERVICES acquiring the knowledge, skills and Paperwork Reduction Act of 1995, the resources they need to support Administration for Children and Administration for Children and children’s healthy development. Families is soliciting public comment Families The Enhanced Home Visiting Pilot on the specific aspects of the Project evaluation will collect and Proposed Information Collection disseminate information about the information collection described above. Activity; Comment Request Copies of the proposed collection of program models and service delivery information can be obtained and Proposed Projects strategies developed by the pilot sites, as well as the characteristics and needs comments may be forwarded by writing Title: Evaluation of the Early Head to the Administration for Children and of participating children, families, and Start Enhanced Home Visiting Pilot caregivers. The evaluation will collect Families, Office of Information Services, Project. 370 L’Enfant Promenade, SW., and analyze information from three OMB No.: New Collection. main sources: (1) Interviews with staff Washington, DC 20447, Attn: ACF Description: The Head Start and focus groups with parents and Reports Clearance Officer. All requests Reauthorization Act of 1994 established cargivers to be conducted during two should be identified by the title of the a special initiative creating funding for rounds of visits to pilot programs (in information collection. services for families with infants and spring 2005 and 2006), (2) a program The Department specifically requests toddlers. In response, the recordkeeping system for tracking comments on: (a) Whether the proposed Administration on Children, Youth and services to be maintained by the pilot collection of information is necessary Families (ACYF) within the sites, and (3) observational assessments Administration for Children and for the proper performance of the of the quality of the caregiving Families (ACF) developed the Early functions of the agency, including environment and the interactions Head Start program. Since its inception, whether the information shall have between children and caregivers to be Early Head Start has expanded to conducted in spring 2006. All data practical utility; (b) the accuracy of the include more than 700 programs and agency’s estimate of the burden of the collection instruments have been 70,000 families enrolled nationwide. designed to minimize the burden on proposed collection of information; (c) The program is designed to produce the quality, utility, and clarity of the respondents by minimizing the time outcomes in four domains: (1) Child required to respond. Participation in the information to be collected; and (d) development, (2) family development, ways to minimize the burden of the study is voluntary. (3) staff development, and (4) The results of the research will be collection of information on community development. The Head respondents, including through the use used by the Head Start Bureau and ACF Start Bureau has given programs a to identify and disseminate information of automated collection techniques or mandate to support the quality of all about promising program models and other forms of information technology. settings where children receive care by service delivery strategies and lessons Consideration will be given to providing high-quality services and learned from the experiences of the pilot comments and suggestions submitted supporting parents and child care programs. providers in caring for their young within 60 days of this publication. Respondents: Early Head Start children. Dated: December 13, 2004. directors, coordinators, specialists, and In keeping with this mandate, the home visitors; staff from other Robert Sargis, Head Start Bureau recently funded 24 community service providers; parents of Reports Clearance Officer. Early Head Start programs to participate Early Head Start children; and neighbor [FR Doc. 04–27582 Filed 12–16–04; 8:45 am] in the Enhanced Home Visiting Pilot and relative caregivers of Early Head Project. The goal of the pilot project is BILLING CODE 4184–01–M Start children. to develop program models for supporting relatives and neighbors who Annual Burden Estimates
ESTIMATED RESPONSE BURDEN FOR RESPONDENTS FOR THE ENHANCED HOME VISITING PILOT EVALUATION
Average Number of Number of burden per Annual Instrument respondents responses per response burden (hours) respondent (hours)
Site Visit Protocols (2005): Director Protocol ...... 24 1 3.0 72.0 Coordinator/Specialist Protocol ...... 24 1 1.5 36.0 Community Partner Protocol ...... 24 1 1.5 36.0 Home Visitor Protocol ...... 48 1 1.5 72.0
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ESTIMATED RESPONSE BURDEN FOR RESPONDENTS FOR THE ENHANCED HOME VISITING PILOT EVALUATION—Continued
Average Number of Number of burden per Annual Instrument respondents responses per response burden (hours) respondent (hours)
Parent Protocol ...... 192 1 1.5 288.0 Caregiver Protocol ...... 192 1 1.5 288.0 Case Review Protocol ...... 48 1 3.0 144.0 Recordkeeping System (2005) ...... 24 a 27 b 2.0 1,296.0
Total for 2005 ...... 2,232.0 Site Visit Protocol (2006): Director Telephone Protocol ...... 24 1 1.0 24.0 Director Protocol ...... 12 1 3.0 36.0 Coordinator/Specialist Protocol ...... 12 1 1.5 18.0 Community Partner Protocol ...... 12 1 1.5 18.0 Home Visitor Protocol ...... 24 1 1.5 36.0 Parent Protocol ...... 96 1 1.5 144.0 Case Review Protocol ...... 24 1 3.0 72.0 Recordkeeping System (2006) ...... 24 a 27 b 1.0 648.0 Caregiver Observations (2006) ...... 96 1 2.5 240.0
Total for 2006 ...... 1,236.0 Total for 2005 and 2006 ...... 3,468.0 Estimated Average Annual Burden Hours ...... 1,734.0 a Average expected number of children to be enrolled in the pilot per site. Expected enrollment ranges from 7 to 60 across the 24 sites. b Based on an estimated burden of 10 minutes per child per month.
In compliance with the requirements collection of information on Plan) for States and Territories is of section 3506(C)(2)(A) of the respondents, including through the use required from each CCDF Lead Agency Paperwork Reduction Act of 1995, the of automated collection techniques or in accordance with Section 658E of the Administration for Children and other forms of information technology. Child Care and Development Block Families is soliciting public comment Consideration will be given to Grant Act of 1990, as amended (Pub. L. on the specific aspects of the comments and suggestions submitted 101–508, Pub. L. 104–193, and 42 U.S.C. information collection described above. within 60 days of this publication. 9858). The implementing regulations for Copies of the proposed collection of Dated: December 13, 2004. the statutorily required Plan are set forth information can be obtained and Robert Sargis, at 45 CFR 98.10 through 98.18. The comments may be forwarded by writing Plan, submitted on the ACF–118, is Reports Clearance Officer. to the Administration for Children and required biennially, and remains in Families, Office of Information Services, [FR Doc. 04–27583 Filed 12–16–04; 8:45 am] effect for two years. The Plan provides 370 L’Enfant Promenade, SW., BILLING CODE 4184–01–M ACF and the public with a description Washington, DC 20447, Attn: ACF of, and assurance about, the State’s or Reports Clearance Offices. E-mail the Territory’s child care program. The DEPARTMENT OF HEALTH AND address: [email protected]. All ACF–118 is currently approved through HUMAN SERVICES requests should be identified by the title May 31, 2006, making it available to of the information collection. Administration for Children and States and Territories needing to submit The Department specifically requests Families Plan Amendments through the end of comments on: (a) Whether the proposed the FY 2005 Plan Period. However, in collection of information is necessary Proposed Information Collection July 2005, States and Territories will be for the proper performance of the Activity; Comment Request required to submit their FY 2006–2007 functions of the agency, including Plans. Consistent with the statute and whether the information shall have Proposed Projects regulations, ACF requests extension of practical utility; (b) the accuracy of the Title: Child Care and Development the ACF–118 with minor corrections agency’s estimate of the burden of the Fund Plan for States/Territories for FY and modifications. The Tribal Plan proposed collection of information; (c) 2006–2007. (ACF–118A) is not affected by this the quality, utility, and clarity of the OMB No.: 0970–0114. notice. information to be collected; and (d) Description: The Child Care and Respondents: State and Territorial ways to minimize the burden of the Development Fund (CCDF) Plan (the CCDF Lead Agencies.
ANNUAL BURDEN ESTIMATES
Number of re- Average instrument Number of re- sponses per burden hours Total burden spondents respondent per response hours
ACF–118 ...... 56 .5 162.57 4,552
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Estimated Total Annual Burden programs. In addition, no program Effective Hours: 4,552. payment is made to any business or Subject, city, state date In compliance with the requirements facility, e.g., a hospital, that submits of section 3506(c)(A) of the Paperwork bills for payment for items or services WOODBURN, OR Reduction Act of 1995, the provided by an excluded party. Program LITINSKY, IGOR ...... 12/20/2004 Administration for Children and CALABASAS, CA beneficiaries remain free to decide for MASON, JACQUELINE ...... 12/20/2004 Families is soliciting public comment themselves whether they will continue E CLEVELAND, OH on the specific aspects of the to use the services of an excluded party MILLER, JEREMY ...... 12/20/2004 information collection described above. even though no program payments will COLUMBUS, OH Copies of the proposed collection of be made for items and services provided MILLER, ROBERT ...... 2/9/2001 information can be obtained and by that excluded party. The exclusions MANSFIELD, TX comments may be forwarded by writing have national effect and also apply to all MITCHELL, STEPHANIE ...... 12/20/2004 to the Administration for Children and Executive Branch procurement and non- ELIZABETH CITY, NC MORRIS, MINDY ...... 12/20/2004 Families, Office of Administration, procurement programs and activities. Office of Information Services, 370 COLUMBUS, OH NOMANIM, DAVID ...... 12/20/2004 L’Enfant Promenade, SW., Washington, Effective WOODLAND HILLS, CA Subject, city, state date DC 20447, Attn: ACF Reports Clearance OANI, LEIA-LEI ...... 12/20/2004 Officer. E-mail address: SANTA MARIA, CA PROGRAM-RELATED CONVICTIONS [email protected]. All requests PEARCE, MITCHELL ...... 12/20/2004 BROOKLYN, NY should be identified by the title of the AMERICAN MEDICAL PROD- PETERSDORF, MICHAEL ...... 12/20/2004 information collection. UCTS ...... 12/20/2004 SANTA BARBARA, CA The Department specifically requests SVCS, INC ORANGE PARK, PRAKASH, A V ...... 2/10/2003 comments on: (a) Whether the proposed FL BIG SPRING, TX collection of information is necessary BAGDASARYAN, EMIN ...... 12/20/2004 QUICK, DAVID ...... 12/20/2004 for the proper performance of the LANCASTER, CA ORANGEBURG, SC functions of the agency, including BEAHAN, JACQUINA ...... 12/20/2004 RAMIREZ, MARIA ...... 12/20/2004 whether the information shall have W APPINGER FALLS, NY LYNWOOD, CA practical utility; (b) the accuracy of the BISHOP, SHARON ...... 12/20/2004 REQUILAM, CAROLINA ...... 12/20/2004 agency’s estimate of the burden of the N BEND, OR CARSON, CA BOERNER, JANET ...... 12/20/2004 proposed collection of information; (c) ROBINSON, CARLTON ...... 12/20/2004 COLUMBUS, OH ATLANTA, GA the quality, utility, and clarity of the CDC OF SOUTH FLORIDA ..... 12/20/2004 information to be collected; and (d) RODRIGUEZ, MARILYN ...... 12/20/2004 MIAMI, FL COLEMAN, FL ways to minimize the burden of the CORPUS, VICKIE ...... 12/20/2004 SHIERY, JULIE ...... 12/20/2004 collection of information on KINGSBURG, CA WOODLAND HILLS, CA respondents, including through the use COSTALES, PHILIP ...... 12/20/2004 SILVA, IVAN ...... 12/20/2004 of automated collection techniques or LONG BEACH, CA SONOMA, CA other forms of information technology. CRAYFORD, WILLIAM ...... 12/20/2004 SMALLS, CHRISTINA ...... 12/20/2004 Consideration will be given to WHITINGHAM, VT MIAMI, FL comments and suggestions submitted CUNNINGHAM, SHANNON ..... 12/20/2004 SOLIS, MELINDA ...... 12/20/2004 BILLINGS, MT within 60 days of this publication. FRESNO, CA DOMINICK, JOANNE ...... 12/20/2004 SPILLER, SANDRA ...... 12/20/2004 Dated: December 13, 2004. KENT, WA COLUMBIA, CA Robert Sargis, DORM, DWIGHT ...... 12/20/2004 STAVCO, INC ...... 12/20/2004 Reports Clearance Officer. YORK, PA TRENTON, NJ EARLY, CHRISTOPHER ...... 12/20/2004 STOCKFORD, PENNY ...... 12/20/2004 [FR Doc. 04–27584 Filed 12–16–04; 8:45 am] HARRISBURG, PA ORLANDO, FL BILLING CODE 4184–01–M EWA, JOSEPH ...... 12/20/2004 SUTHERLAND, DEBORAH ..... 12/20/2004 STATEN ISLAND, NY TALLAHASSEE, FL FEDERICO, JOSEPH ...... 12/20/2004 SZILVAGYI, DAVID ...... 12/20/2004 DEPARTMENT OF HEALTH AND MIDDLEBURG, FL BRADFORD, PA HUMAN SERVICES FIRST MED EMS, INC ...... 12/20/2004 SZILVAGYI, ELENA ...... 12/20/2004 ATLANTA, GA LEXINGTON, KY Office of Inspector General FREMIN, LUKE ...... 12/20/2004 T & N PHARMACEUTICAL PLAQUEMINE, LA CO, INC ...... 12/20/2004 Program Exclusions: November 2004 GUERRERO-SAUSTEGUI, MAPLEWOOD, NJ JAVIER ...... 12/20/2004 VENTURA, GILBERTO ...... 12/20/2004 AGENCY: Office of Inspector General, PETULUMA, CA BOYES HOT SPRINGS, CA HHS. JACKSON, MICHAEL ...... 12/20/2004 WIESEMANN, RICHARD ...... 12/20/2004 ACTION: Notice of program exclusions. AUBURN, AL HAMILTON, MT JR MICK, INC ...... 12/20/2004 WILLIAMS, AKINTOLA ...... 12/20/2004 During the month of November 2004, TRENTON, NJ ATLANTA, GA the HHS Office of Inspector General KAMPURYAN, GEVORK ...... 12/20/2004 WINKY, INC ...... 12/20/2004 imposed exclusions in the cases set NORTH HOLLYWOOD, CA WALL, NJ forth below. When an exclusion is KATZ, JAY ...... 12/20/2004 ZIMMERMAN, AMY ...... 12/20/2004 imposed, no program payment is made EGLIN, FL MANSFIELD, OH KUKASH, MAJDI ...... 12/20/2004 to anyone for any items or services(other GOLDSBORO, NC FELONY CONVICTION FOR HEALTH CARE than an emergency item or service not LEMESHKO, IVAN ...... 12/20/2004 FRAUD provided in a hospital emergency room) WOODBURN, OR furnished, ordered or prescribed by an LEMESHKO, TAMARA ...... 12/20/2004 BARGER, MELISSA ...... 12/20/2004 excluded party under the Medicare, WOODBURN, OR ENGLEWOOD, OH Medicaid, and all Federal Health Care LEMESHKO, VLADIMIR ...... 12/20/2004 CHIA, DIANE ...... 12/20/2004
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CINCINNATI, OH SACRAMENTO, CA GAITHERSBURG, MD DANIELS, SUSAN ...... 12/20/2004 HILL, TAMEKA ...... 12/20/2004 AVERHART, AARON ...... 12/20/2004 BURLINGTON, VT TUSCALOOSA, AL FT MYERS, FL DEGUZMAN, FITZ ...... 12/20/2004 JENNER, ALLEN ...... 12/20/2004 BACCELLI, ANGELA ...... 12/20/2004 NAPA, CA OGDENSBURG, NY SUSANVILLE, CA DUMONT, BEVERLY ...... 12/20/2004 JUAREZ, SILVERIA ...... 12/20/2004 BANUELOS, MARTHA ...... 12/20/2004 SNOW, OK FRESNO, CA BUENA PARK, CA JOHNSON, BILLIE ...... 12/20/2004 LAMPHEAR, DENISE ...... 12/20/2004 BARNES, LINDA ...... 12/20/2004 MONICKS CORNER, SC LARGO, FL DEMOPOLIS, AL KELLEY, MARY ...... 12/20/2004 LANGEVIN, CARMILLA ...... 12/20/2004 BARNETT, MELANEY ...... 12/20/2004 HUNTSVILLE, AL HELENA, MT WINSTON-SALEM, NC KREISMAN, MARCIA ...... 12/20/2004 LUCAS, GAROLD ...... 12/20/2004 BATISTE, SHARON ...... 12/20/2004 NORTH BERGEN, NJ YREKA, CA TACOMA, WA MITCHELL, AMY ...... 12/20/2004 MARTINEZ, SARA ...... 12/20/2004 BAX, DEBORAH ...... 12/20/2004 ROANOKE, AL MIAMI SPRINGS, FL CLEARWATER, FL MOSES, KEVIN ...... 12/20/2004 MCGOLDRICK, VANESSA ...... 12/20/2004 BAZZANO, NORA ...... 12/20/2004 CLEVELAND, OH NORMAN, OK MIAMI, FL POSNER, RUSSELL ...... 12/20/2004 MCKNIGHT, KAREN ...... 12/20/2004 BELL, SHERRI ...... 12/20/2004 MONTGOMERY, AL SHREVEPORT, LA CANTON, IL RIDDELL, JASON ...... 12/20/2004 MELLOTT, BRADLY ...... 12/20/2004 BENIS, DAVID ...... 12/20/2004 TAMPA, FL NAPOLEON, OH JERSEY SHORE, PA SMALLEY, VICKI ...... 12/20/2004 PIERCE, SUSAN ...... 12/20/2004 BENNETT, JUDITH ...... 12/20/2004 SALEM, OR NASHUA, NH WINDSOR, VT WEAVER, KATHY ...... 12/20/2004 BERRY, CHRISTY ...... 12/20/2004 POULLARD, BRANDY ...... 12/20/2004 CHILLICOTHE, OH HOUSTON, TX VINTON, LA BESS, ROBERT ...... 12/20/2004 SABEROLA, HARREL ...... 12/20/2004 FELONY CONTROL SUBSTANCE JOHNSON CITY, TN CONVICTION BALDWIN PARK, CA BIRNEY, SCOTT ...... 12/20/2004 TOMASO, MARY ...... 12/20/2004 DREXEL HILL, PA ALERRE, RICARDO ...... 12/20/2004 ALBANY, NY BOWEN, GINA ...... 12/20/2004 MURRELLS INLET, SC TURNER, ROBERT W ...... 12/20/2004 GREENACRES, WA BORDEAUX, DEBORAH ...... 12/20/2004 JORDAN, UT BOYD, GREGORY. FLORENCE, SC WAFFER, JACQUELINE ...... 12/20/2004 MARY ESTER, FL 12/20/2004 BROWN, RICHARD ...... 12/20/2004 SHREVEPORT, LA BROKAW, RHONDA ...... 12/20/2004 STRAFFORD, PA WALDEN, RAYMOND ...... 12/20/2004 BELLVILLE, OH CRAIG, MARTHA ...... 12/20/2004 SOUTH CHARLESTON, WV BROOKS, RUTH ...... 12/20/2004 SPRINGFIELD, IL WALLER, MARSHA ...... 12/20/2004 HELENA, AL CUTRIGHT, LORI ...... 12/20/2004 MARKSVILLE, LA BROTHERS, JEFFREY ...... 12/20/2004 CLEARWATER, FL WILLIAMS, MONA ...... 12/20/2004 CENTRAL CITY, KY DEVLIN, THOMAS ...... 12/20/2004 SYRACUSE, NY BROWN, GAIL ...... 12/20/2004 GOLDSBORO, NC WINSTON-SALEM, NC ECK, HEATHER ...... 12/20/2004 CONVICTION FOR HEALTH CARE FRAUD BROWN, JAMES ...... 12/20/2004 SALT LAKE CITY, UT MEMPHIS, TN HALL, DUDLEY ...... 12/20/2004 CHURCH, MELISSA ...... 12/20/2004 BRYARS, SUSAN ...... 12/20/2004 NEW YORK, NY FRESNO, CA BAY MINETTE, AL HASKELL, DAVID ...... 12/20/2004 HERNANDEZ, MICHELLE ...... 12/20/2004 BUGGS, DAVID ...... 12/20/2004 MIDLAND, TX SAN ANGELO, TX TAMPA, FL MCCLAIN, JEFFREY ...... 12/20/2004 MAGANA, ANGEL ...... 12/20/2004 BURKE, BARBARA ...... 12/20/2004 LONOKE, AR PECOS, TX HOUSTON, TX SPARKS, KATHLEEN ...... 12/20/2004 PHILLIPS, RANDALL ...... 8/27/2004 BUTLER, MARK ...... 12/20/2004 BILLINGS, MT FLORENCE, CO RIVERSIDE, IL WERTHEIM, HOWARD ...... 12/20/2004 RIVERA, ROBERT ...... 12/20/2004 CANOY, VIVIAN ...... 12/20/2004 HACKETTSTOWN, NJ THREE RIVERS, TX JACKSON, LA ZOOBI, MUHAMAD ...... 12/20/2004 CASSIDY, DANIELLA ...... 12/20/2004 FOREST HILLS, NY CONTROLLED SUBSTANCE CONVICTIONS BROWNSVILLE, KY CHAMBERLIN, ANNE ...... 12/20/2004 PATIENT ABUSE / NEGLECT CONVICTIONS WEEDMAN, CATHY ...... 12/20/2004 SPOKANE, WA CHATTANOOGA, TN CHANDLER, MATTHEW ...... 12/20/2004 ARROWOOD, JOYCE ...... 12/20/2004 RICHARDSON, TX COLUMBIA, MO LICENSE REVOCATION / SUSPENSION/ CHARLES, MARIE ...... 12/20/2004 CORTEZ, JUAN ...... 12/20/2004 SURRENDERED LAKE WORTH, FL FORT WORTH, TX CHAVEZ, CHRISTOPHER ...... 12/20/2004 DAVIS, DAVID ...... 12/20/2004 ALBERTSON, ANNETTE ...... 12/20/2004 PHOENIX, AZ SAN MATEO, CA HEBRON, KY CLARK, LORI ...... 12/20/2004 DEY, SUBRATA ...... 12/20/2004 ALLEN, VICKI ...... 12/20/2004 LEHIGH ACRES, FL WHITESBURG, KY LAS VEGAS, NV CLIFFORD, STEVEN ...... 12/20/2004 FAINA, ROYCE ...... 12/20/2004 AMOS, RENE ...... 12/20/2004 CARNELIAN BAY, CA LARAMIE, WY GLENWOOD, IL COHEN, ALAN ...... 12/20/2004 GEIGER, CLETUS ...... 12/20/2004 APPEL, LAWRENCE ...... 12/20/2004 WESTON, MA NORTH PORT, FL RANDALLSTOWN, MD COHEN, MARIANNE ...... 12/20/2004 HAWKS, PAUL ...... 12/20/2004 ARLEDGE, STACY ...... 12/20/2004 HENDERSON, NV DAYTON, WA GADSDEN, AL COLBY, DEBRA ...... 12/20/2004 HELMS, RALPH ...... 12/20/2004 ASHBURN, TIMOTHY ...... 12/20/2004 E TAUNTON, MA COLE-HICKMAN, THOMAS ..... 12/20/2004
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PHOENIX, AZ FAIRFIELD, AL COLUMBIA, SC COLLINS, JOAN ...... 12/20/2004 HABERMAN, ARTHUR ...... 12/20/2004 MAZZEO-WHITE, SUNNY ...... 12/20/2004 SAN DIEGO, CA UPLAND, CA BOYNTON BEACH, FL COLVIN, MELISSA ...... 12/20/2004 HALL, DENISE ...... 12/20/2004 MCCANN, LAURAN ...... 12/20/2004 SPRINGFIELD, IL BARDSTOWN, KY HOUSTON, TX CONNER, JAMES ...... 12/20/2004 HALLMARK, FERRIS ...... 12/20/2004 MCCORMICK, JOHN ...... 12/20/2004 CALLAHAN, FL FAIRFIELD GLADE, TN ORLANDO, FL CONNER, STACY ...... 12/20/2004 HAZZARD, JENELLE ...... 12/20/2004 MCDOWELL, LANA ...... 12/20/2004 RENTON, WA LEWISTOWN, IL LAFOLLETTE, TN COOLEY, BRIAN ...... 12/20/2004 HERT, JAMES ...... 12/20/2004 MERILLAT, SUZANNE ...... 12/20/2004 CLARKSVILLE, FL ARLINGTON, TX SILVER SPRINGS, MD COPPARINI, TINA ...... 12/20/2004 HOLGIN, RICHARD ...... 12/20/2004 MIKESELL, STACEY ...... 12/20/2004 MANSFIELD, MA AUSTIN, TX NEWTON, MA CORLEY, JAMIE ...... 12/20/2004 HOLSTON, JONNA ...... 12/20/2004 MILEY, VALERIE ...... 12/20/2004 GADSDEN, AL KERNERSVILLE, NC REHRERSBURG, PA COX, BARBARA ...... 12/20/2004 HOOD, GLORIA ...... 12/20/2004 MILLER, DOUGLAS ...... 12/20/2004 WACO, TX GOODYEAR, AZ RINGGOLD, GA CRANE, KAREN ...... 12/20/2004 HORN, TONY ...... 12/20/2004 MINGIS, LISA ...... 12/20/2004 HOLLAND, OH DES MOINES, WA LOUISVILLE, KY CURRY, JASON ...... 12/20/2004 HUBBARD, RITA ...... 12/20/2004 MOORE, CONNIE ...... 12/20/2004 AUSTIN, TX LONDON, KY CONROE, TX CUSICK, KIMBERLY ...... 12/20/2004 HUNT, MARLA ...... 12/20/2004 MORELAND, JOANN ...... 12/20/2004 MELBOURNE, FL LEE, FL FROST, TX DELGADO, FELIX ...... 12/20/2004 HUNTER, ALFRED ...... 12/20/2004 MULLINS, STEPHANIE ...... 12/20/2004 MARGATE, FL CINCINNATI, OH BONNYMAN, KY DEYOUNG, EDWARD ...... 12/20/2004 HUPPERTZ, ANNA ...... 12/20/2004 MURPHY, PAULA ...... 12/20/2004 TUCSON, AZ CRESCENT SPRINGS, KY TACOMA, WA DOLL, LAUREN ...... 12/20/2004 JACKSON, MICHELE ...... 12/20/2004 NESBY, ROBERTA ...... 12/20/2004 HOUSTON, TX NORTH PORT, FL FEDERAL WAY, WA DRUPKA, CHRISTINE ...... 12/20/2004 JARMAN, SANDRA ...... 12/20/2004 NIELSON, ROBERT ...... 12/20/2004 CHICAGO, IL FLORENCE, KY MESA, AZ DUBOIS, KYLE ...... 12/20/2004 JOHNSON, MICHELLE ...... 12/20/2004 NONATO, RONALD ...... 12/20/2004 ALPINE, UT LYNN, MA ANAHEIM, CA DUDLEY, SHAWANA ...... 12/20/2004 JOHNSON, TAMMIE ...... 12/20/2004 NURI, MAJDIAN ...... 12/20/2004 TAMPA, FL BIRMINGHAM, AL LAGUNA HILLS, CA DUNHAM, STEVEN ...... 12/20/2004 JONES, DANA ...... 12/20/2004 O’RIORDAN, KAREN ...... 12/20/2004 MESA, AZ PADUCAH, KY BOYNTON BEACH, FL EDIE, MICHELL ...... 12/20/2004 JURS, JUDY ...... 12/20/2004 ODOM, ELIZABETH ...... 12/20/2004 RENO, NV ROGERS, AR DURANT, OK EGERT, JANET ...... 12/20/2004 KEENAN, ELIZABETH ...... 12/20/2004 PARNELLO, DEBRA ...... 12/20/2004 SAN JOSE, CA SUMMERFIELD, FL ROCKFORD, IL ENNIS, VALERIE ...... 12/20/2004 KENTZ, PATRICIA ...... 12/20/2004 PAVAI, TONI ...... 12/20/2004 GARNER, NC RESTON, VA MORRISTOWN, FL FELDER, CHASTITY ...... 12/20/2004 KEY, ANNA ...... 12/20/2004 PAYNE, KATHY ...... 12/20/2004 MONTGOMERY, AL ASHLAND, KY OWENSBORO, KY FISHER, BEVERLY ...... 12/20/2004 LAMBERT, RONALD ...... 12/20/2004 PAYNE, STEPHANIE ...... 12/20/2004 LOUISVILLE, KY BOULDER, CO OWENSBORO, KY FOSMORE-BADR, NITA ...... 12/20/2004 LAWRENCE, JULIE ...... 12/20/2004 PITTS, ELENA ...... 12/20/2004 WESTBOROUGH, MA MALONE, FL BAKERSFIELD, CA FRENCH, KATHRYN ...... 12/20/2004 LAWRENCE, SUSAN ...... 12/20/2004 POWELL, CAREY ...... 12/20/2004 WADDELL, AZ EVANSVILLE, IN MOUNT STERLING, KY GARCIA, ETHEL ...... 12/20/2004 LAWSON, LINDA ...... 12/20/2004 PRATT, KAREN ...... 12/20/2004 PHOENIX, AZ PORT CLINTON, OH WASHINGTON, PA GARDNER, PETER ...... 12/20/2004 LEGG, SANDRA ...... 12/20/2004 READ, CHERYL ...... 12/20/2004 NASHVILLE, TN JOHNSON CITY, TN POMONA, CA GENTILE, DANIEL ...... 12/20/2004 LEVY, YVONNE ...... 12/20/2004 REAM, STEPHANIE ...... 12/20/2004 PENN VALLEY, CA PIKEVILLE, KY YORK, PA GILLAND, SHEILA ...... 12/20/2004 LIPOVSIK, LORI ...... 12/20/2004 RIZZO, JANET ...... 12/20/2004 ARDEN, NC MCKEES ROCKS, PA ENGLEWOOD, FL GIVENS, TERESA ...... 12/20/2004 LLOYD, LINDSEY ...... 12/20/2004 ROBERSON, MARIA ...... 12/20/2004 LINCOLN, IL JACKSONVILLE, FL BELMAR, NJ GLOVER, VICKIE ...... 12/20/2004 LOUCHART, JULIA ...... 12/20/2004 ROBERTS, KRISTI ...... 12/20/2004 BOWLING GREEN, KY EAST STROUDSBURG, PA SHELBYVILLE, KY GRAFFUIS, MARIA ...... 12/20/2004 LUNDY, CLARENCE ...... 12/20/2004 ROBERTSON, DEBORAH ...... 12/20/2004 APOPKA, FL THEODORE, AL MIAMISBURG, OH GRAUER, LOUIS ...... 12/20/2004 MADDOX, ALBERT ...... 12/20/2004 ROJCEWICZ, JUDITH ...... 12/20/2004 MIAMI BEACH, FL ATLANTA, GA WESTMINSTER, MA GRAVELLE, RANDY ...... 12/20/2004 MAHER, SHARON ...... 12/20/2004 ROWTON, KAREN ...... 12/20/2004 LOS ANGELES, CA SELAH, WA AUSTIN, TX GRIEL, DOLORES ...... 12/20/2004 MANIS, BRISA ...... 12/20/2004 RUNES, VALERIE ...... 12/20/2004 SHELBURNE FALLS, MA SCOTTSDALE, AZ ARLINGTON HEIGHTS, IL GUERLINE, JULIO ...... 12/20/2004 MARTIN, JOEY ...... 12/20/2004 RUONA, LUANNE ...... 12/20/2004 LEHIGH ACRES, FL HUGHES SPRINGS, TX ALEXANDRIA, VA GUEST, REBECCA ...... 12/20/2004 MAUNEY, DEBRA ...... 12/20/2004 RUSSELL, DEBORAH ...... 12/20/2004
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Dated: December 1, 2004. Subject, city, state Effective Subject, city, state Effective date date Katherine B. Petrowski, Director, Exclusions Staff, Office of Inspector GEORGETOWN, IL EUCLID, OH General. SALAHADEEN, AQUILA ...... 12/20/2004 [FR Doc. 04–27647 Filed 12–16–04; 8:45 am] EAST CLEVELAND, OH FEDERAL / STATE EXCLUSION / SEBREE, CLARA ...... 12/20/2004 SUSPENSION BILLING CODE 4150–04–P OWENSBORO, KY SEPLOW, ELIZABETH ...... 12/20/2004 ROGERS, JUDY ...... 12/20/2004 N MIAMI, FL RYE, NH DEPARTMENT OF HOMELAND SERRANILLA, HERMINIA ...... 12/20/2004 ROGERS, WILLIAM ...... 12/20/2004 SECURITY ANAHEIM, CA RYE, NH Federal Emergency Management SICHEL, DEBORAH ...... 12/20/2004 FRAUD / KICKBACKS / PROHIBITED ACTS / NEWTON, MA Agency SETTLEMENT AGREEMENTS SICKORA, MARK ...... 12/20/2004 Agency Information Collection CHAMPION, PA CHARLESTON SPEECH AND SILBERSTEIN, JAN ...... 12/20/2004 Activities: Submission for OMB HEARING ...... 5/14/2004 Review; Comment Request EAST HARTFORD, CT N CHARLESTON, SC SILVA, FAITH ...... 12/20/2004 WATTS, ROBERT ...... 5/14/2004 AGENCY: Federal Emergency GLOUCESTER, MA N CHARLESTON, SC Management Agency, Emergency SIMON, JUNIOR ...... 12/20/2004 Preparedness and Response Directorate, CAPE CORAL, FL OWNED / CONTROLLED BY CONVICTED U.S. Department of Homeland Security SMITH, JAMES ...... 12/20/2004 ENTITIES CLEARWATER, FL ACTION: Notice and request for SNOW, ANGIE ...... 12/20/2004 CLINICAL SOLUTIONS OF comments. MEDWAY, MA SOUTH FLORIDA ...... 12/20/2004 SUMMARY: The Federal Emergency SPIRES, LISA ...... 12/20/2004 PEMBROKE PINES, FL Management Agency (FEMA) has TUSCUMBIA, AL DAVID WAYNE ENTERPRISE, STEELE, IRIS ...... 12/20/2004 INC ...... 12/20/2004 submitted the following information AMORY, MO MIAMI BEACH, FL collection to the Office of Management STEWART, JANICE ...... 12/20/2004 DENTAL HEALTH CLINIC, INC 12/20/2004 and Budget (OMB) for review and NEWPORT, TN HIALEAH, FL clearance in accordance with the STILLMAN, SPRING ...... 12/20/2004 HEALTHY SMILE DENTISTRY, requirements of the Paperwork ORLANDO, FL INC ...... 12/20/2004 Reduction Act of 1995 (44 U.S.C. STONE, NATASHA ...... 12/20/2004 MIAMI LAKES, FL Chapter 35). The submission describes CAPE CANAVERAL, FL HIALEAH DME, INC ...... 12/20/2004 the nature of the information collection, STONEBERG, JEREMIAH ...... 12/20/2004 HIALEAH, FL the categories of respondents, the TUCSON, AZ HIGH TECH MEDICAL CEN- estimated burden (i.e., the time, effort TER ...... 12/20/2004 STROUD, LYNETTA ...... 12/20/2004 and resources used by respondents to MIAMI SPRINGS, FL RADCLIFF, KY respond) and cost, and includes the STURGILL, CHRISTIANNE ...... 12/20/2004 IMAGINE CONSULTING actual data collection instruments STUART, FL SERVICES, INC ...... 12/20/2004 SUKI SPA, INC ...... 12/20/2004 MIAMI BEACH, FL FEMA will use. PALM HARBOR, FL K & F SERVICES, CORP ...... 12/20/2004 Title: National Incident Management SWINDLE, DANA ...... 12/20/2004 RED LION, PA System Compliance Assurance Support W RICHLAND, WA PALM BCH SPORTS MEDI- Tool (NIMCAST). TANAEL, RICARDO ...... 12/20/2004 CINE ASSOC ...... 12/20/2004 OMB Number: 1660–0087. VALLEJO, CA BOYNTON BEACH, FL Abstract: The National Incident TARAN, RICHARD ...... 12/20/2004 RUSSELL M POSNER, DC, PA 12/20/2004 Management System Compliance BRENTWOOD, TN MONTGOMERY, AL Assessment Tool (NIMCAST) is a 75 THOMAS, BELINDA ...... 12/20/2004 SOUTHEAST RESPIRATORY data element instrument used to: (a) TAMARAC, FL CARE, INC ...... 12/20/2004 Evaluate State, local and Tribal TORRES, DORA ...... 12/20/2004 MIAMI, FL governments’ compliance with SAN RAFAEL, CA UNITY HOME HEALTH CARE standards and requirements established TURNER, RICHARD ...... 12/20/2004 AND OXYGEN ...... 12/20/2004 HAMILTON, MT in the National Incident Management SEQUIM, WA System (NIMS), (b) determine eligibility UNDERWOOD, DAWANNA ..... 12/20/2004 DEFAULT ON HEAL LOAN for Federal preparedness assistance, and LOUISVILLE, KY (c) strengthen incident management VANCE, MARY ...... 12/20/2004 BOYKO, JOHN ...... 12/20/2004 programs at the department, agency, or PELL CITY, AL FULLERTON, CA WALLACE, ETHEL ...... 12/20/2004 jurisdictional level. BYRNS, DESIREA ...... 12/20/2004 ASHLAND, KY Affected Public: State, local and FORT MYERS, FL Tribal Government, and not for profit WARREN, THERESA ...... 12/20/2004 GREENO, VINCENT ...... 12/20/2004 TAMPA, FL institutions. READING, MA Number of Respondents: 4,835 WEST, ANNIE ...... 12/20/2004 LOPEZ, ROBERTO ...... 12/20/2004 TUSCALOOSA, AL respondents. SEASIDE, CA Estimated Time per Respondent: 3 WHITE, VICTORIA ...... 12/20/2004 RAMIREZ, RICHARD ...... 10/20/2004 hours. WEST WYOMING, PA HOUSTON, TX Estimated Total Annual Burden WIATER, MICHAEL ...... 12/20/2004 SOMMERFELD, KURT ...... 12/20/2004 OAK GROVE, KY NEW CASTLE, PA Hours: 14,505 hours. WILDMAN, TRACIE ...... 12/20/2004 WALKER, ROBERT ...... 12/20/2004 Frequency of Response: Once BRADENTON, FL LANSING, MI annually for all respondents. WOODS, FREDERICK ...... 12/20/2004 Occasionally, subsequent assessments
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or follow-ups may be required for some (The following Catalog of Federal Domestic (The following Catalog of Federal Domestic respondents on a case-by-case basis not Assistance Numbers (CFDA) are to be used Assistance Numbers (CFDA) are to be used exceeding two responses per year. for reporting and drawing funds: 97.030, for reporting and drawing funds: 97.030, Comments: Interested persons are Community Disaster Loans; 97.031, Cora Community Disaster Loans; 97.031, Cora Brown Fund Program; 97.032, Crisis Brown Fund Program; 97.032, Crisis invited to submit written comments on Counseling; 97.033, Disaster Legal Services Counseling; 97.033, Disaster Legal Services the proposed information collection to Program; 97.034, Disaster Unemployment Program; 97.034, Disaster Unemployment the Office of Information and Regulatory Assistance (DUA); 97.046, Fire Management Assistance (DUA); 97.046, Fire Management Affairs at OMB, Attention: Desk Officer Assistance; 97.048, Individuals and Assistance; 97.048, Individuals and for the Department of Homeland Households Housing; 97.049, Individuals and Households Housing; 97.049, Individuals and Security/FEMA, Docket Library, Room Households Disaster Housing Operations; Households Disaster Housing Operations; 10102, 725 17th Street, NW., 97.050, Individuals and Households 97.050, Individuals and Households Washington, DC 20503, or facsimile Program—Other Needs, 97.036, Public Program—Other Needs, 97.036, Public number (202) 395–7285. Comments Assistance Grants; 97.039, Hazard Mitigation Assistance Grants; 97.039, Hazard Mitigation must be submitted on or before January Grant Program) Grant Program.) 18, 2005. Michael D. Brown, Michael D. Brown, FOR FURTHER INFORMATION CONTACT: Under Secretary, Emergency Preparedness Under Secretary, Emergency Preparedness Requests for additional information or and Response, Department of Homeland and Response, Department of Homeland copies of the information collection Security. Security. should be made to Muriel B. Anderson, [FR Doc. 04–27624 Filed 12–16–04; 8:45 am] [FR Doc. 04–27623 Filed 12–16–04; 8:45 am] Section Chief, Records Management, BILLING CODE 9110–10–P BILLING CODE 9110–10–P FEMA at 500 C Street, SW., Room 316, Washington, DC 20472, facsimile number (202) 646–3347, or e-mail DEPARTMENT OF HOMELAND DEPARTMENT OF HOUSING AND address FEMA-Information- SECURITY URBAN DEVELOPMENT [email protected]. Federal Emergency Management [Docket No. FR–4901–N–51] Dated: December 10, 2004. Agency George S. Trotter, Federal Property Suitable as Facilities [FEMA–1551–DR] Acting Branch Chief, Information Resources To Assist the Homeless Management Branch, Information Florida; Amendment No. 6 to Notice of Technology Services Division. AGENCY: Office of the Assistant a Major Disaster Declaration [FR Doc. 04–27625 Filed 12–16–04; 8:45 am] Secretary for Community Planning and Development, HUD. BILLING CODE 9110–17–P AGENCY: Federal Emergency Management Agency, Emergency ACTION: Notice. Preparedness and Response Directorate, SUMMARY: DEPARTMENT OF HOMELAND Department of Homeland Security. This Notice identifies SECURITY unutilized, underutilized, excess, and ACTION: Notice. surplus Federal property reviewed by Federal Emergency Management HUD for suitability for possible use to SUMMARY: This notice amends the notice Agency assist the homeless. of a major disaster declaration for the State of Florida (FEMA–1551–DR), DATES: Effective Date: December 17, [FEMA–1571–DR] dated September 16, 2004, and related 2004. determinations. Alaska; Amendment No. 2 to Notice of FOR FURTHER INFORMATION CONTACT: a Major Disaster Declaration DATES: Effective Dates: December 9, Kathy Ezzell, Department of Housing 2004. and Urban Development, Room 7262, AGENCY: 451 Seventh Street SW., Washington, Federal Emergency FOR FURTHER INFORMATION CONTACT: DC 20410; telephone (202) 708–1234; Management Agency, Emergency Magda Ruiz, Recovery Division, Federal TTY number for the hearing- and Preparedness and Response Directorate, Emergency Management Agency, speech-impaired (202) 708–2565, (these Department of Homeland Security. Washington, DC 20472, (202) 646–2705. ACTION: Notice. telephone numbers are not toll-free), or SUPPLEMENTARY INFORMATION: The notice call the toll-free Title V information line of a major disaster declaration for the SUMMARY: This notice amends the notice at 1–800–927–7588. State of Florida is hereby amended to of a major disaster for the State of SUPPLEMENTARY INFORMATION: In include the following areas among those Alaska (FEMA–1571–DR), dated accordance with the December 12, 1988 areas determined to have been adversely November 15, 2004, and related court order in National Coalition for the affected by the catastrophe declared a determinations. Homeless v. Veterans Administration, major disaster by the President in his No. 88–2503–OG (D.D.C.), HUD DATES: Effective Date: December 9, 2004. declaration of September 16, 2004: publishes a Notice, on a weekly basis, FOR FURTHER INFORMATION CONTACT: The counties of Brevard, Clay, Duval, identifying unutilized, underutilized, Magda Ruiz, Recovery Division, Federal Flagler, Highlands, Indian River, Lake, excess and surplus Federal buildings Emergency Management Agency, Manatee, Marion, Martin, Okeechobee, and real property that HUD has Washington, DC 20472, (202) 646–2705. Osceola, Orange, Palm Beach, Pasco, Polk, reviewed for suitability for use to assist Seminole, St. Johns, St. Lucie, and Volusia SUPPLEMENTARY INFORMATION: Notice is for Individual Assistance. the homeless. Today’s Notice is for the hereby given that the incident period for The counties of Citrus and Lee for purpose of announcing that no this declared disaster is now October 18, Individual Assistance (already designated for additional properties have been 2004, through and including October 24, emergency protective measures [Category B] determined suitable or unsuitable this 2004. under the Public Assistance Program.) week.
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Dated: December 9, 2004. (Xyrauchen texanus) (razorback), the Secretary of the Interior on August Mark R. Johnston, yellow-billed cuckoo (Coccyzus 17, 2004, during the public comment Director, Office of Special Needs Assistance americanus) (cuckoo), and relict leopard period on the Draft LCR MSCP program Programs. frog (Rana onca) (frog). The ITP would documents. These letters provide a [FR Doc. 04–27401 Filed 12–16–04; 8:45 am] also address incidental take for 19 other commitment to ‘‘share in the agreed BILLING CODE 4210–29–M species of animals and plants that are upon LCR MSCP costs equally with the not federally listed or candidate species United States on a 50/50 federal/non- at this time. The proposed take would federal basis.’’ DEPARTMENT OF THE INTERIOR occur in Mohave, La Paz, and Yuma A number of other public comments counties, Arizona; San Bernardino, received pursuant to the June 18, 2004, Fish and Wildlife Service Riverside, and Imperial counties, Federal Register notice sought California; and Clark County, Nevada, as information regarding the financial Bureau of Reclamation a result of water storage and delivery, assurances necessary to implement the power generation, and other associated [INT–FES–04–47] LCR MSCP. The commitments federal and non-federal water contained in the August 17, 2004, letters Final Environmental Impact Statement/ management actions and activities on from Arizona, California, and Nevada Environmental Impact Report for the lower Colorado River from the full have now been incorporated into a Draft Proposed Adoption of the Lower pool elevation of Lake Mead to the Funding and Management Agreement Colorado River Multi-Species Southerly International Boundary with (FMA), which was developed during Conservation Program, Final Lower Mexico. negotiations between the federal and Colorado River Multi-Species Habitat A Final HCP, which makes revisions non-federal parties to the LCR MSCP Conservation Plan, Final Biological to the Draft HCP submitted as part of the and is published as Exhibit A to the Assessment, Incidental Take Permit application package (Application), has Final HCP. In addition, the parties have Application, Draft Implementing been submitted to the Service as also developed a Draft IA, which is Agreement, and Draft Funding and required by the Act for consideration of published as Exhibit B to the Final HCP. Management Agreement issuance of an ITP, pursuant to section Subsequent to publication of this 10(a)(1)(B). The HCP provides measures Federal Register Notice and the FEIS/ AGENCIES: Fish and Wildlife Service, to minimize and mitigate the effects of FEIR and other program documents, the Bureau of Reclamation, Interior. the proposed incidental take of listed, Draft IA and Draft FMA will be ACTION: Notice of availability. candidate, and other species. presented to the relevant approving Reclamation, the Service, Bureau of officials and respective boards. No final SUMMARY: Pursuant to the National Land Management (BLM), Bureau of decisions have been made by the federal Environmental Policy Act (NEPA), the Indian Affairs (BIA), National Park Fish and Wildlife Service (Service) and or non-federal parties with respect to Service (NPS), and Western Area Power the financial commitments or other the Bureau of Reclamation Administration (Western), have (Reclamation) published a Federal provisions set forth in the August 17th completed a Final BA, which includes letters and the Draft FMA, or with Register notice on June 18, 2004 (69 FR an evaluation of the effects of specific 34185) that informed the public of the respect to the provisions in the Draft IA. ongoing and potential future federal Appropriate revisions, if any, will be availability of the Draft Environmental actions, including Reclamation’s Impact Statement/Draft Environmental included in any Final FMA and Final discretionary LCR operations and IA. Appropriate information regarding Impact Report (DEIS/DEIR) for the maintenance activities. In addition, the Lower Colorado River Multi-Species the issues addressed in the Draft FMA BA addresses Reclamation’s proposed and the Draft IA will also be included Conservation Program (LCR MSCP), implementation of the conservation in any Record of Decision (ROD) issued Application for Section 10 Incidental plan and conservation measures by the Secretary with respect to the LCR Take Permit (ITP), Draft Lower Colorado described in the BA and in the HCP for MSCP. River Multi-Species Habitat the listed, candidate, and other covered Conservation Plan (HCP), Draft species. DATES: No decision will be made on the Biological Assessment (BA), and Draft The Service, Reclamation, and The proposed action until at least 30 days Implementing Agreement (IA). Metropolitan Water District of Southern after the United States Environmental The notice provided for a 60-day California, as joint lead agencies, have Protection Agency’s (EPA) Notice of comment period; comments were issued a Final Environmental Impact Availability for the LCR MSCP FEIS/ accepted pursuant to the notice through Statement/Final Environmental Impact FEIR has been published in the Federal August 18, 2004. The notice also Report (FEIS/FEIR) to evaluate the Register. At this time, it is anticipated advised the public that the Service impacts of, and alternatives for, the the Secretary of the Interior will received an ITP application for the LCR possible issuance of an ITP and the complete a ROD in January 2005. MSCP pursuant to section 10(a)(1)(B) of implementation by Reclamation of ADDRESSES: Copies of the LCR MSCP the Endangered Species Act of 1973, as conservation measures described in the FEIS/FEIR, Final HCP, Final BA, Draft amended (Act). The ITP would BA and the HCP. IA, and Draft FMA are available for authorize the LCR MSCP permittees’ As of the June 18, 2004, Federal public inspection and review at the incidental take of the following Register Notice, a Draft IA that locations listed in the SUPPLEMENTARY federally listed and candidate species: represented the positions of the federal INFORMATION section. An internet southwestern willow flycatcher and non-federal entities that are version of the documents is available on (Empidonax traillii extimus) anticipated to participate in the LCR the LCR MSCP Web site, http:// (flycatcher), Yuma clapper rail (Rallus MSCP had not yet been completed. www.lcrmscp.org. In addition, copies longirostris yumanensis) (clapper rail), Subsequent to the publication of the are available upon request from Mr. desert tortoise (Gopherus agassizii) June 18, 2004, Federal Register notice, Steve Spangle, Field Supervisor, U.S. (tortoise), bonytail (Gila elegans) letters of financial commitment from Fish and Wildlife Service, 2321 West (bonytail), humpback chub (Gila cypha) representatives of the States of Arizona, Royal Palm Road, Suite 103, Phoenix, (humpback), razorback sucker California and Nevada were received by AZ, 85021; or Mr. Glen Gould, Bureau
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of Reclamation, P.O. Box 61470, LC– to receive public comment on the DEIS/ 2. Listed Species Only—Issuance of 2011, Boulder City, NV, 89006–1470. DEIR. an ITP authorizing the same covered FOR FURTHER INFORMATION, CONTACT: Mr. Proposed Action: The proposed action actions by the LCR MSCP participants Steve Spangle, Field Supervisor, Fish has two components. The first is the but only requesting incidental take and Wildlife Service, 2321 West Royal issuance of an ITP by the Service for coverage for the six species currently Palm Road, Suite 103, Phoenix, AZ, covered activities on the LCR listed as endangered or threatened 85021 or (602) 242–0210; or Mr. Glen undertaken by the HCP applicants, pursuant to the Act. This alternative Gould, Bureau of Reclamation, P.O. Box pursuant to section 10(a)(1)(B) of the includes measures to minimize and 61470, LC–2011, Boulder City, NV, Act. The activities that would be mitigate for the potential take of 89006–1470 or (702) 293–8702. covered by the ITP are water- and federally listed species. 3. Off-Site Conservation—Issuance of SUPPLEMENTARY INFORMATION: This power-related actions, and other an ITP authorizing the same covered notice advises the public that the specific identified non-federal activities actions by the LCR MSCP participants Service and Reclamation, with the involving the LCR. The area covered by and the same list of 27 species. Habitat participation of other federal and non- the ITP (and the LCR MSCP) includes restoration activities would occur federal agencies, have gathered the Lake Mead up to its full pool elevation outside of the LCR MSCP planning area information necessary to: (1) Formulate of 1,229 feet, Lake Mohave up to its full in adjacent river basins. This alternative alternatives and determine impacts for pool elevation of 647 feet, Lake Havasu includes measures to minimize and the FEIS/FEIR related to the issuance of up to its full pool elevation of 450 feet, mitigate for the potential take of an ITP for the LCR MSCP; and (2) and the LCR and its historical federally listed species, candidate develop and implement the HCP, which floodplain from the highest elevation of species, and other covered species. provides measures to minimize and Lake Mead to the Southerly International Boundary with the Pursuant to the June 10, 2004, order mitigate the effects of incidental take of in Spirit of the Sage Council v. Norton, federally listed species to the maximum Republic of Mexico. The requested term of the permit is 50 years. To meet the Civil Action No. 98–1873 (D.D.C.), the extent practicable. Service is enjoined from approving new Section 9 of the Act prohibits the requirements of a section 10(a)(1)(B) ITP, the LCR MSCP participants have section 10(a)(1)(B) permits or related ‘‘taking’’ of threatened and endangered documents containing ‘‘No Surprises’’ species. However, the Service, under developed and, with the cooperation of Reclamation, will implement the assurances until such time as the limited circumstances, may issue ITPs Service adopts new permit revocation to take threatened or endangered conservation plan described in the BA and in the HCP, which provides rules specifically applicable to section wildlife species when such taking is 10(a)(1)(B) permits in compliance with incidental to, and not the purpose of, measures to minimize and mitigate incidental take of flycatchers, clapper the public notice and comment otherwise lawful activities. Regulations requirements of the Administrative governing issuance of ITPs pursuant to rails, tortoises, bonytails, humpbacks, and razorbacks to the maximum extent Procedure Act. This Federal Register the Act are published at 50 CFR Parts 13 notice provides notice of a step in the and 17. This notice is provided practicable, and which ensures that the incidental take will not appreciably review and processing for the potential pursuant to Section 10(c) of the Act and issuance of a section 10(a)(1)(B) permit; applicable NEPA regulations (40 CFR reduce the likelihood of the survival and recovery of these species in the any subsequent permit issuance will be 1506.6). in accordance with the Court’s order. The LCR MSCP, the conservation wild. The conservation plan identified Until such time as the Service’s program described in the HCP, and the in the BA and the HCP also addresses authority to issue permits with ‘‘No BA were developed over the past seven potential impacts on the cuckoo and Surprises’’ assurances has been years in a public process involving frog (candidate species) and 19 other reinstated, the Service will not approve participants and stakeholders from species of animals and plants. any incidental take permits or related potentially affected or interested groups The second component is the documents that contain ‘‘No Surprises’’ on the LCR. These groups include completion of consultation under assurances, consistent with the Court’s federal agencies, i.e., the Service, section 7(a)(2) with Federal action agencies for their covered actions order. Reclamation, BLM, BIA, NPS, and Copies of the FEIS/FEIR, Final HCP, (identified in Chapter 2 of the BA), Western; six Tribes; the Lower Basin Final BA, ITP Application, Draft IA, and including implementation of the States of Arizona, California, and Draft FMA are available for public conservation plan by Reclamation as Nevada; and other interested LCR inspection and review at the following part of its proposed action (along with stakeholders. The groups were locations (by appointment at its identified continued and future organized into a Steering Committee government offices): and various subject matter operations and maintenance activities • Department of the Interior, Natural subcommittees to oversee the on the LCR). Resources Library, 1849 C. St. NW., development of the LCR MSCP. Alternatives: Three other alternatives Washington, DC, 20240. Meetings of the Steering Committee are being considered as part of this • Fish and Wildlife Service, 500 Gold were open to the public and time for process, as follows: Avenue SW., Room 4012, Albuquerque, public comment was included at each 1. No ITP—No issuance of an ITP. NM, 87102. meeting. The LCR MSCP website This alternative would require the LCR • Fish and Wildlife Service, 2321 contains information on meetings and MSCP participants to pursue individual West Royal Palm Road, Suite 103, documents. Three sets of public ESA compliance activities to address Phoenix, AZ, 85021. meetings were held from 1999 through incidental take resulting from their • Bureau of Reclamation, Lower 2003 to explain the need for the LCR actions or activities on the LCR or avoid Colorado Region, 500 Date Street, MSCP, request information on taking actions that would result in Boulder City, NV, 86009–1470. important issues for the NEPA process, incidental take. This approach would • Bureau of Reclamation, Upper receive input on the conservation require the federal action agencies to Colorado Region, 125 South State Street, program, and present alternatives. Three consult separately on any proposed Room 6107, Salt Lake City, UT, 84138– public hearings were held in July 2004 discretionary actions on the LCR. 1102.
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• Bureau of Reclamation Library, Janssen, Coal Coordinator, at 307–775– The Ten Mile Rim LBA coal is ranked Denver Federal Center, 6th Avenue and 6260, and 307–775–6206, respectively. as subbituminous B. The overall average Kipling, Building 67, Room 167, Denver, SUPPLEMENTARY INFORMATION: This coal quality is approximately 9,900 BTU/lb. CO, 80225. lease sale is being held in response to with about 10.25% ash, 0.59% sulfur, • Bureau of Reclamation, Phoenix a lease by application (LBA) filed by and 3.21% sodium in the ash. These Area Office, 2222 W. Dunlap Ave., Suite Bridger Coal Company. The Federal coal quality averages are generally higher 100, Phoenix, AZ, 85021. than the reserves currently being mined • tract being considered for sale is Metropolitan Water District of adjacent to the Jim Bridger Mine in the adjacent surface mine. Southern California, 700 N. Alameda operated by Bridger Coal Company. The The tract will be leased to the St., Los Angeles, CA, 90017. coal resources to be offered consist of all qualified bidder of the highest cash • Government Document Service, reserves recoverable by underground amount provided that the high bid Arizona State University, Tempe, AZ, mining methods in the following- equals the fair market value of the tract. 85287. described lands located in Sweetwater The minimum bid for the tract is $100 • Yuma County Library, 350 S. 3rd County north of Point of Rocks, per acre or fraction thereof. No bid that Ave., Yuma, AZ, 85384. is less than $100 per acre, or fraction • Palo Verde Valley Library, 125 W. Wyoming. It is approximately 10 miles north of Interstate 80 and is thereof, will be considered. The bids Chanslor Way, Blythe, CA, 92225. should be sent by certified mail, return • Mohave County Library, 1170 immediately adjacent to the receipt requested, or be hand delivered. Hancock Rd., Bullhead City, AZ, 86442. northwestern boundary of the existing • Laughlin Library, 2840 South Jim Bridger surface mine. The Cashier will issue a receipt for each hand-delivered bid. Bids received after Needles Hwy., Laughlin, NV, 89029. T. 21 N., R. 100 W., 6th PM, Wyoming. Sec. 4 p.m., on Tuesday, January 18, 2005, • Clark County Library, 1401 East 6: Lots 8–14, S1⁄2NE1⁄4, SE1⁄4NW1⁄4, 1 1 1 will not be considered. The minimum Flamingo Road, Las Vegas, NV, 89119. E ⁄2SW ⁄4, SE ⁄4; • James I. Gibson Library, 280 Water T. 22 N., R. 100 W., 6th PM, Wyoming. Sec. bid is not intended to represent fair Street, Henderson, NV, 89015. 30: Lots 5–8, E1⁄2W1⁄2, E1⁄2; market value. The fair market value of T. 22 N., R. 101 W., 6th PM, Wyoming. Sec. the tract will be determined by the Dated: December 14, 2004. 26: Lots 1–16; Sec. 34: Lots 1, 2, 6–8, 13, Authorized Officer after the sale. The Willie R. Taylor, 1 1 1 1 NE ⁄4SE ⁄4, SW ⁄4SE ⁄4. lease issued as a result of this offering Director, Office of Environmental Policy and Containing 2,242.18 acres, more or less. will provide for payment of an annual Compliance. rental of $3.00 per acre, or fraction [FR Doc. 04–27677 Filed 12–16–04; 8:45 am] The tract is adjacent to sections within an existing federal coal lease to thereof, and of a royalty payment to the BILLING CODE 4310–MN–P the south, to alternating sections under United States of 12.5 percent of the a private coal lease, and to an imbedded value of coal produced by strip or auger mining methods and 8 percent of the DEPARTMENT OF THE INTERIOR section under a State of Wyoming lease, all controlled by the Jim Bridger Mine. value of the coal produced by Bureau of Land Management It is also adjacent to additional unleased underground mining methods. The federal and private coal to the east, value of the coal will be determined in [WY–920–1320–EL, WYW154595] north, and west. accordance with 30 CFR 206.250. Bidding instructions for the tract Notice of Competitive Coal Lease Sale, All of the acreage offered has been offered and the terms and conditions of Wyoming determined to be suitable for underground mining. There are no the proposed coal lease are available AGENCY: Bureau of Land Management, existing surface facilities or structures from the BLM Wyoming State Office at Interior. that will be impacted by the proposed the addresses above. Case file ACTION: Notice of competitive coal lease underground mine. There are no documents, WYW154595, are available sale. producing oil and/or gas wells on the for inspection at the BLM Wyoming tract. All of the surface estate is State Office. SUMMARY: Notice is hereby given that controlled by the Jim Bridger Mine. certain coal resources in the Ten Mile Alan Rabinoff, The tract contains underground Deputy State Director, Minerals and Lands. Rim Tract described below in mineable coal reserves in the Deadman [FR Doc. 04–27486 Filed 12–16–04; 8:45 am] Sweetwater County, WY, will be offered zone of the Fort Union formation for competitive lease by sealed bid in currently being recovered in the BILLING CODE 4310–22–P accordance with the provisions of the adjacent, existing surface mine. In this Mineral Leasing Act of 1920, as area, the Deadman occurs in numerous DEPARTMENT OF THE INTERIOR amended (30 U.S.C. 181 et seq.). seams, but only the D–41 seam is DATES: The lease sale will be held at 10 considered to be recoverable in the Bureau of Land Management a.m., on Wednesday, January 19, 2005. proposed mine area. This seam ranges Sealed bids must be submitted on or from about 7–16 feet thick and occurs [WY–030–1610–DS] before 4 p.m., on Tuesday, January 18, over the entire LBA. The depth from the 2005. surface ranges from about 250–1050 feet Notice of Availability of the Draft ADDRESSES: The lease sale will be held from the shallow southwest corner to Environmental Impact Statement for in the First Floor Conference Room the deep northeast corner. the Rawlins Resource Management (Room 107) of the BLM Wyoming State The tract contains an estimated Plan Revision Office, 5353 Yellowstone Road, P.O. 32,145,000 tons of recoverable coal AGENCY: Bureau of Land Management, Box 1828, Cheyenne, WY 82003. Sealed based on a longwall recovery method. Interior. bids must be submitted to the Cashier, This method assumes 7–8.5 foot ACTION: Notice of availability of a Draft BLM Wyoming State Office, at the recovery for continuous miner sections Environmental Impact Statement (DEIS) address given above. and 7–11 foot recovery for longwall for the Rawlins Resource Management FOR FURTHER INFORMATION CONTACT: Julie panels. The estimate of recoverable Plan (RMP), Wyoming. Weaver, Land Law Examiner, or Robert reserves includes only the D–41 seam.
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SUMMARY: In accordance with Section mineral estate under private or State- providing for compatible development 202 of the National Environmental owned surface. and use (Protection Alternative); Policy Act of 1969 (NEPA), the Bureau In 1990, the BLM approved the Great 4. Alternative 4. Provides of Land Management (BLM) announces Divide RMP. This RMP established development opportunities while the availability of the DEIS for the management direction for the surface protecting sensitive resources (Agency Rawlins RMP Revision. and mineral estates and associated Preferred Alternative). The DEIS describes and analyzes resources administered by the BLM The Rawlins RMP DEIS considers, alternatives for the planning and Rawlins Field Office, Wyoming. In July and is in conformance with, BLM’s management of public lands and 2001, an evaluation of the Great Divide National Fire Plan. The potential for resources administered by the BLM RMP, predecessor to the Rawlins RMP, energy development in the Rawlins Rawlins Field Office. concluded that the RMP was deficient RMP planning area is high, both east and west of Rawlins, Wyoming. Based DATES: The Rawlins RMP and DEIS will in certain areas as a result of changed on the high potential within the area be available for review for 90 calendar conditions and demands on the area’s administered by the Rawlins Field days from the date the Environmental resources. Office, the DEIS considers oil and gas Protection Agency (EPA) publishes its In 2002, under the provisions found at and wind energy development in NOA in the Federal Register. The BLM 43 CFR 1610, the BLM published a can best utilize comments and resource support of the National Energy Plan. Notice of Intent to prepare an In the time since the BLM published information submissions within this Environmental Impact Statement (EIS) review period. its Notice of Intent to prepare an RMP that would be used to review and and EIS in the Federal Register, BLM Formal hearings and open houses will analyze current conditions considering be scheduled to provide the public has conducted open houses, taken new data, new or revised policies, and surveys, and issued mailings to solicit additional opportunities to submit circumstances affecting the entire or comments on the Rawlins RMP revision comments and input. The Rawlins Field major portions of the geographic area Office has been coordinating with and DEIS. All meetings or hearings and addressed in the Great Divide RMP. To any other public involvement activities various County Governments, reflect changes in administrative units, Conservation Districts, and Wyoming will be announced at least 15 days in the BLM also established that the advance through public notices, media State Government throughout the revised plan would henceforth be development of the DEIS. Tribal news releases, Rawlins RMP Web site known as the Rawlins RMP. announcements, or mailings. Governments with interests in the The DEIS describes the physical, Rawlins area were also contacted. ADDRESSES: A copy of the DEIS has been biological, cultural, historic, and sent to affected Federal, State, and local Commencing with the date that BLM’s socioeconomic resources in and around NOI was published in the Federal Government agencies and to interested the planning area. The focus for impact parties. The document will be available Register, through April 7, 2003, the analysis is based on resource issues and BLM solicited for, and received, in electronically on the following Web site: concerns identified during scoping and http://www.wy.blm.gov/rfo/rfoplan.htm. excess of, 26,000 comments from public involvement activities and interested parties. In addition, public Copies of the DEIS will be available for opportunities. Potential impacts of public inspection at the following meetings were held to provide the concern regarding possible management public with an opportunity to acquire locations: direction and planning decisions (not in • Bureau of Land Management, information about the RMP revision priority order) are development of process, as well as to provide the public Wyoming State Office, 5353 energy resources and mineral-related Yellowstone Road, Cheyenne, Wyoming with an opportunity to submit issues; special management comments. Public meetings were held 82003 designations; resource accessibility; • Bureau of Land Management, in: Rock Springs, Wyoming, March 3, wildland-urban interface; special status 2003; Rawlins, Wyoming, March 4, Rawlins Field Office, 1300 N. Third species management; water quality; Street, Rawlins, Wyoming 82301 2003; Baggs, Wyoming, March 5, 2003; vegetation management; and recreation, and Laramie, Wyoming, March 6, 2003. FOR FURTHER INFORMATION CONTACT: Mr. cultural and paleontological resources BLM has considered all comments John Spehar, Project Manager, BLM management. Rawlins Field Office, 1300 N. Third presented throughout the process in the The DEIS documents the direct, preparation of the Draft RMP EIS. Street, Rawlins, WY 82301. Requests for indirect, and cumulative environmental information may be sent electronically Background information and maps used impacts of four alternatives for in developing the Draft RMP EIS are to: [email protected] with management of BLM-administered ‘‘Attention: Rawlins RMP Information available for public viewing in the public lands within the Rawlins Field Rawlins Field Office. Request’’ in the subject line. Mr. Spehar Office. When completed, the revised may also be reached at (307) 328–4264. RMP will fulfill the obligations set forth How To Submit Comments SUPPLEMENTARY INFORMATION: The by NEPA, the Federal Land Policy and The BLM welcomes comments on the administrative area is located in south Management Act, and associated Rawlins RMP DEIS. Comments may be central and southeastern Wyoming and Federal regulations. Four alternatives submitted as follows: includes approximately 11.2 million are analyzed in detail: 1. The Rawlins RMP Revision Web acres of land in Albany, Carbon, 1. Alternative 1. Continues Existing site at www.rawlinsrmp.com is designed Laramie, and Sweetwater Counties. Management Direction (‘‘No Action’’ to allow commenters to submit Within that area, the BLM administers Alternative); comments electronically by resource approximately 3.3 million acres of 2. Alternative 2. Encourages subject directly onto a comment form public land surface and underlying development and use opportunities posted on the Web site; Federal mineral estate. The BLM while minimizing adverse impacts to 2. Comments may be uploaded in an administers an additional 0.1 million cultural and natural resources electronic file directly to the above Web acres of surface estate over State and (Development Alternative); site; private minerals, and administers an 3. Alternative 3. Fosters conservation 3. Comments may be electronically additional 1.2 million acres of Federal of natural and cultural resources while mailed to [email protected].
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4. Comments may be submitted ACTION: Notice of availability. 751–4725. The Forest Service contact is during the public open houses and Mr. Sandy Hurlocker, NEPA hearings that will be held at a later date; SUMMARY: In accordance with the Coordinator, Espanola Ranger District, and National Environmental Policy Act of P.O. Box 3307, Espanola, New Mexico 5. Written comments may be mailed 1969 (NEPA), the Bureau of Land 87533, telephone (505) 753–7331. directly, or delivered, to the BLM Management, Taos Field Office, and SUPPLEMENTARY INFORMATION: The at:Rawlins RMP/EIS, Bureau of Land Forest Service, Santa Fe National Forest, project area is located northwest of Management Rawlins Field Office, 1300 announce the availability of the Draft Santa Fe, New Mexico. The DEIS N. Third Street, P.O. Box 2407, Rawlins, Environmental Impact Statement (DEIS) describes and analyzes the impacts of WY 82301–2407. for the Buckman Water Diversion alternatives for approximately 9 miles of BLM will only accept comments on Project. upgrades to an existing access road and the Rawlins RMP DEIS if they are DATES: The Buckman Water Diversion for construction and operation of a submitted in one of the five methods as Project DEIS will be available for review water diversion intake on the Rio described above. To facilitate analysis of for 60 days from the date the Grande; sediment settling ponds; pumps comment and information submitted, Environmental Protection Agency (EPA) and water pipelines to move the BLM strongly encourages the public to publishes its Notice of Availability withdrawn water approximately 15 submit comments in an electronic (NOA) in the Federal Register. The miles to the vicinity of its use; two format through either the Web site or Bureau of Land Management and Forest water treatment plants; and and two electronic mail. To be given Service can best utilize your comments power lines a 115 Kv and a 12.47 Kv consideration by BLM all DEIS and resource information submissions plus one substation. comment submittals must include the within the 60 day review period If authorized, the project will be commenter’s name and street address. provided above. Any meetings or public predominantly located on public lands Our practice is to make comments, involvement activities associated with administered by the Bureau of Land including the names and street distribution of the DEIS will be Management and the Forest Service; and addresses of each respondent, available announced at least 15 days in advance a relatively small portion of the project for public review at the BLM office through the local media, at Web site facilities will be located on private listed above during business hours (7:45 http://www.nm.blm.gov, and/or lands and Bureau of Land Management a.m. to 4:30 p.m.), Monday through mailings. lands leased to the City of Santa Fe. Friday, except for Federal holidays. The Forest Service and Bureau of ADDRESSES: Your comments may be published as Copies of the DEIS have Land Management are co-lead agencies part of the EIS process. Individual been sent to affected Federal, State, and for this project; the Department of respondents may request local government agencies and to Interior Bureau of Reclamation confidentiality. If you wish to withhold interested parties, and will be available (contributing funds), City of Santa Fe your name or street address or both from via the Internet at http:// and Santa Fe County are cooperating public review or from disclosure under www.nm.blm.gov. agencies. The City of Santa Fe, Santa Fe Copies of the DEIS will also be the Freedom of Information Act, you County and Las Companas Limited available at the following locations: must state this prominently at the Partnership are the project applicants. • Bureau of Land Management, New beginning of your written comments. The project applicants (City of Santa Mexico State Office, 1474 Rodeo Road, Such requests will be honored to the Fe, Santa Fe County, and Las Companas Santa Fe, NM 87505. extent allowed by law. We will not Limited Partnership) have proposed the • Forest Service, Santa Fe National Buckman Water Diversion Project to consider anonymous comments. All Forest, 1474 Rodeo Road, Santa Fe, NM submissions from organizations or meet the immediate need for a 87505. sustainable means of accessing water businesses will be made available for • Tetra Tech, Santa Fe Office, 502 public inspection in their entirety. supplies that make more direct use of West Cordova Road, Santa Fe,NM the Applicants’ water rights by diverting Dated: January 4, 2004. 87505. San Juan-Chama Project water and • Editorial Note: This document was City of Santa Fe, Sangre de Cristo native Rio Grande water while reducing received at the Office of the Federal Register Water Division, 801 West San Mateo, impacts to the aquifer. The Applicants December 13, 2004. Santa Fe, NM 87504. • propose to construct and operate a Robert A. Bennett, Santa Fe County, Utilities surface water diversion facility at the State Director. Department, 205 Montezuma Ave., Rio Grande near the western terminus of [FR Doc. 04–27532 Filed 12–16–04; 8:45 am] Santa Fe, NM 87501. Buckman Road located within the Santa • USDI Bureau of Reclamation, 555 BILLING CODE 4310–22–P Fe National Forest, near the existing Broadway Ave., Albuquerque, NM Buckman Well Field. The water will be 87102. pumped to the Santa Fe vicinity where Comments must be sent to Mr. Sandy DEPARTMENT OF THE INTERIOR it will serve municipal and community Hurlocker (Buckman Diversion water supply customers. Bureau of Land Management Comments), Espanola Ranger District, The Buckman Water Diversion is PO Box 3307, Espanola, New Mexico proposed to be constructed with the DEPARTMENT OF AGRICULTURE 87533. E-mail comments may be capacity necessary to meet the near-term directed to the following e-mail address: need for water, based on physical, Forest Service comments-southwestern-santafe- technical, and environmental [email protected] Notice of Availability of Draft limitations. The proposed project has an FOR FURTHER INFORMATION CONTRACT: Environmental Impact Statement for independent utility from the long-term the Buckman Water Diversion Project, The Bureau of Land Management water management strategy being Santa Fe County, New Mexico contact is Ms. Sher Churchill, Planning undertaken by the City and the County. and Environmental Coordinator, Taos, The scoping process has included AGENCIES: Bureau of Land Management, Field Office, 226 Cruz Alta Rd., Taos, public meetings, field reviews, and Interior. Forest Service, Agriculture. New Mexico 87571, telephone (505) interactions with various State and
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Federal agencies. Issues identified PO Box 738, Pinedale, WY 82941; 307– ACTION: Notice of public meeting. during scoping led to the development 367–5341. SUMMARY: In accordance with the of alternatives to a number of SUPPLEMENTARY INFORMATION: The components in the proposed action. Pinedale Anticline Working Group Federal Land Policy and Management Also, on-going discussions and (PAWG) was authorized and established Act of 1976 (FLPMA), and the Federal evaluations conducted by the lead with release of the Record of Decision Advisory Committee Act of 1972 agencies and Applicants have resulted (ROD) for the Pinedale Anticline Oil (FACA), the U.S. Department of the in the identification of additional action and Gas Exploration and Development Interior, Bureau of Land Management items (such as power infrastructure and Project on July 27, 2000. The PAWG (BLM) Northwest California Resource road upgrades) that have been advises the BLM on the development Advisory Council will meet as indicated incorporated into the proposed action and implementation of monitoring plans below. and other action alternatives. The DEIS and adaptive management decisions as DATES: The meeting will be held describes and analyzes the direct, development of the Pinedale Anticline Wednesday and Thursday, Feb. 2 and 3, indirect and cumulative effects of a Natural Gas Field (PAPA) proceeds for 2005, in Redding, California. On Feb. 2, range of action alternatives and the No the life of the field. the council members convene at 10 a.m. Action alternative in detail. The After the ROD was issued, Interior at the BLM Redding Field Office, 355 alternatives, including the Agencies’ determined that a Federal Advisory Hemsted Dr., and depart immediately Preferred Alternative, conform to Committees Act (FACA) charter was for a field tour of projected land existing laws and regulations, and required for this group. The charter was exchange sites. Members of the public provide for resource protection. signed by Secretary of the Interior, Gale are welcome on the tour, but they must Sam DesGeorges, Norton, on August 15, 2002, and provide their own transportation and lunch. On Feb. 3, the council convenes BLM Taos Field Manager. renewed on August 13, 2004. An announcement of committee initiation at 8 a.m. in the Conference Center at the Gilbert Zepeda, and call for nominations was published McConnell Foundation headquarters, Santa Fe Forest Supervisor. in the Federal Register on February 21, 800 Shasta View Drive in Redding. Time [FR Doc. 04–26871 Filed 12–16–04; 8:45 am] 2003 (68 FR 8522). PAWG members for public comment has been set aside BILLING CODE 4310–FB–P were appointed by Secretary Norton on for 10:30 a.m. May 4, 2004. FOR FURTHER INFORMATION CONTACT: Rich At their second business meeting, the Burns, BLM Ukiah Field Office DEPARTMENT OF THE INTERIOR PAWG established seven resource- or manager, (707) 468–4000; or BLM activity-specific Task Groups, including Public Affairs Officer Joseph J. Fontana, Bureau of Land Management one for Transportation. Public (530) 252–5332. [WY–100–05–1310–DB] participation on the Task Groups was SUPPLEMENTARY INFORMATION: The 12- solicited through the media, letters, and member council advises the Secretary of Notice of Meeting of the Pinedale word-of-mouth. the Interior, through the BLM, on a Anticline Working Group’s The agenda for this meeting will variety of planning and management Transportation Task Group include information gathering and issues associated with public land discussion related to developing a AGENCY: management in Northwest California. At Bureau of Land Management, transportation monitoring plan to assess Interior. this meeting, agenda topics will include the impacts of development in the the proposed ‘‘Area 51’’ land exchange, ACTION: Notice of public meeting. Pinedale Anticline gas field, and other land exchange issues, identifying who will do and who will SUMMARY: In accordance with the transportation funding and recreation pay for the monitoring. Task Group Federal Land Policy and Management issues. All meetings are open to the recommendations are due to the PAWG Act (1976) and the Federal Advisory public. Members of the public may in February, 2005. At a minimum, Committee Act (1972), the U.S. present written comments to the public comments will be heard just Department of the Interior, Bureau of council. Each formal council meeting prior to adjournment of the meeting. Land Management (BLM) Pinedale will have time allocated for public Anticline Working Group (PAWG) Dated: December 8, 2004. comments. Depending on the number of Transportation Task Group Priscilla E. Mecham, persons wishing to speak, and the time (subcommittee) will meet in Pinedale, Field Office Manager. available, the time for individual Wyoming, for a business meeting. Task [FR Doc. 04–27648 Filed 12–16–04; 8:45 am] comments may be limited. Members of the public are welcome on field tours, Group meetings are open to the public. BILLING CODE 4310–27–P DATES: A PAWG Transportation Task but they must provide their own Group meeting is scheduled for January transportation and lunch. Individuals 25, 2005, from 1 p.m. until 5 p.m. DEPARTMENT OF THE INTERIOR who plan to attend and need special assistance, such as sign language ADDRESSES: The meeting of the PAWG Bureau of Land Management interpretation and other reasonable Transportation Task Group will be held accommodations, should contact the in the Lovatt room of the Pinedale BLM as provided above. Library at 155 S. Tyler Ave., Pinedale, [CA–310–0777–XG] WY. Dated: December 10, 2004. Notice of Public Meeting: Northwest Joseph J. Fontana, FOR FURTHER INFORMATION CONTACT: Bill California Resource Advisory Council Wadsworth, BLM/Transportation TG Public Affairs Officer. Liaison, Bureau of Land Management, AGENCY: Bureau of Land Management, [FR Doc. 04–27592 Filed 12–16–04; 8:45 am] Pinedale Field Office, 432 E. Mills St., Interior. BILLING CODE 4310–40–P
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DEPARTMENT OF THE INTERIOR regulations to administer leasing of the environment, and do not interfere or OCS. Such rules and regulations will conflict with the other uses of the OCS Minerals Management Service apply to all operations conducted under (i.e., military use, subsistence activity). a lease. Operations on the OCS must ∑ Points of contact and responsible Agency Information Collection preserve, protect, and develop oil and parties are designated for proposed Activities: Proposed Collection; natural gas resources in a manner that activities. Comment Request is consistent with the need to make such ∑ Surveying, monitoring, or other AGENCY: Minerals Management Service resources available to meet the Nation’s activities do not interfere or conflict (MMS), Interior. energy needs as rapidly as possible; to with preexisting and other uses of the balance orderly energy resource area. ACTION: Notice of extension of an development with protection of human, ∑ Plans or actions meet or implement information collection (1010–0151). marine, and coastal environments; to lease stipulation requirements. ∑ SUMMARY: To comply with the ensure the public a fair and equitable Proposed exploration, drilling, Paperwork Reduction Act of 1995 return on the resources of the OCS; and production, and pipeline activities are (PRA), MMS is inviting comments on a to preserve and maintain free enterprise conducted in a safe and acceptable collection of information that we will competition. Sections 11 and 25 of the manner for the location and water depth submit to the Office of Management and amended OCS Lands Act require the proposed and conserve reservoir energy Budget (OMB) for review and approval. holders of OCS oil and gas or sulphur to allow enhanced recovery operations The information collection request (ICR) leases to submit exploration plans (EPs) in later stages of lease development. ∑ Unnecessary or incompatible concerns the paperwork requirements in or development and production plans facilities are not installed on the OCS. the rulemaking for 30 CFR 250, Subpart (DPPs) to the Secretary for approval ∑ Shallow drilling hazards (such as B, ‘‘Plans and Information.’’ prior to commencing these activities. Section 43 U.S.C. 1356 requires the shallow gas accumulations or mud slide DATES: Submit written comments by issuance of ‘‘* * * regulations which areas) are avoided. February 15, 2005. require that any vessel, rig, platform, or ∑ Areas are properly classified for ADDRESSES: You may submit comments other vehicle or structure * * * (2) H2S, and appropriate procedures are in by any of the following methods listed which is used for activities pursuant to place. below. Please use the Information this subchapter, comply * * * with ∑ Appropriate oil spill planning Collection Number 1010–0151 as an such minimum standards of design, measures and procedures are identifier in your message. construction, alteration, and repair as implemented. • Public Connect on-line commenting the Secretary * * * establishes. * * *’’ ∑ Expected meteorological conditions system, https://ocsconnect.mms.gov. Section 43 U.S.C. 1332(6) also states, at the activity site are accommodated. Follow the instructions on the Web site ‘‘operations in the [O]uter Continental ∑ Environmentally sensitive areas are for submitting comments. Shelf should be conducted in a safe identified, and the direct and • Federal eRulemaking Portal: http:// manner * * * to prevent or minimize cumulative effects of the activities are www.regulations.gov. Follow the the likelihood of * * * physical minimized. instructions on the Web site for obstruction to other users of the water ∑ Offshore and onshore air quality is submitting comments. or subsoil and seabed, or other not significantly affected by the • E-mail MMS at occurrences which may cause damage to proposed activities. [email protected]. Identify with the environment or to property, or ∑ Waste disposal methods and the Information Collection number in endanger life or health.’’ These pollution mitigation techniques are the subject line. authorities and responsibilities are appropriate for local conditions. • Fax: 703–787–1093. Identify with among those delegated to the Minerals ∑ State CZM requirements have been the Information Collection Number. Management Service (MMS) to ensure met. ∑ • Mail or hand-carry comments to the that operations in the OCS will meet Archaeological or cultural Department of the Interior; Minerals statutory requirements; provide for resources are identified and protected Management Service; Attention: Rules safety and protection of the from unreasonable disturbances. ∑ Process Team (RPT); 381 Elden Street, environment; and result in diligent Socioeconomic effects of the MS–4024; Herndon, Virginia 20170– exploration, development, and proposed project on the local 4817. Please reference ‘‘Information production of OCS leases. community and associated services have Collection 1010–0151’’ in your MMS proposed a complete revision of been determined. ∑ comments. the 30 CFR 250, subpart B regulations Support infrastructures and (67 FR 35372, May 17, 2002), and OMB associated traffic are adequately covered FOR FURTHER INFORMATION CONTACT: approved the information collection in plans. Cheryl Blundon, Rules Processing Team requirements under control number The following forms used in the Gulf at (703) 787–1600. You may also contact 1010–0151, expiration June 2005. This of Mexico Region (GOMR) are also Cheryl Blundon to obtain a copy, at no submission is a renewal of the submitted to MMS. With the exception cost, of the regulation and associated information requirements for the of the last form, OMB approved these forms that require the subject collection rulemaking and is required to prevent forms as part of the information of information. the expiration of OMB approval under collection for the current subpart B SUPPLEMENTARY INFORMATION: Title: 30 1010–0151; the ICR reflects what we regulations. CFR 250, Subpart B, ‘‘Plans and expect to be in our final rulemaking, ∑ Form MMS–137 (Plan Information Information.’’ which is in surnaming. Form) is submitted to summarize plan OMB Control Number: 1010–0151. Specifically, MMS uses the information. MMS uses the information Abstract: The Outer Continental Shelf information to evaluate, analyze, to assist in data entry and review of (OCS) Lands Act, as amended (43 U.S.C. determine, or ensure that: submitted OCS plans. This form asks 1331 et seq. and 43 U.S.C. 1801 et seq.), ∑ Ancillary activities comply with for, in either fill in the blanks or check authorizes the Secretary of the Interior appropriate laws or regulations and are marks: General information relating to (Secretary) to prescribe rules and conducted safely, protect the the company; description of proposed
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activities; tentative schedule of video tape (VHS) and transcript of what under the Freedom of Information Act proposed activities; description(s) of was visualized at the bottom throughout (5 U.S.C. 552) and its implementing drilling rig, production platform, lease deployment (the form includes a guide regulations (43 CFR Part 2) and under term pipelines; proposed well structure to animal groups and a guide to physical regulations at 30 CFR 250.196, ‘‘Data location; and anchor locations for features), and any additional imagery and information to be made available to drilling rig or construction barge. that helps depict bottom conditions. We the public’’. No items of a sensitive ∑ Forms MMS–138 (GOM Air use the information when such areas are nature are collected. Responses are Emissions Calculations for Exploration found to help design mitigation mandatory. Plans) and MMS–139 (GOM Air measures to avoid these areas in the Frequency: On occasion. Emissions Calculations for Development future. We also use the information to Operations Coordination Documents help assess the effectiveness of Estimated Number and Description of (DOCDs)) are submitted to standardize avoidance criteria and expand the Respondents: Approximately 150 the way potential air emissions are knowledge base regarding the benthic Federal OCS oil and gas or sulphur estimated and approved as part of the habitats of the deep water seafloor. lessees. OCS plan. These forms are intended to ∑ Form MMS–NEW (Environmental Estimated Reporting and be thorough but flexible to meet the Impact Analysis Matrix) is a new fill in Recordkeeping ‘‘Hour’’ Burden: The needs of different operators. The data the blank matrix form proposed to be currently approved annual reporting from these forms determine the air submitted to identify the environmental burden for this collection is 267,880 emissions on the environment. These impact-producing factors (IPFs) for the hours. During the interim period forms consist of: Title sheet, factors listed environmental resources. We use between proposed and final rules, OMB sheet, emissions spreadsheet and a the information to assess impact and approved the renewal of the information summary sheet which will describe and determine compliance with the National collection burden in the current subpart calculate emissions from an activity. Environmental Policy Act. A form B regulations (1010–0049). After Respondents are asked to categorize number will be assigned when final consultations with respondents, we emissions into 9 factors: natural gas regulations take effect. Respondents are revised the estimates of the hour prime movers, diesel-fired prime asked to fill in the blank by placing an burdens and the annual number of movers, heaters/boilers/firetubes/NG- ‘‘x’’ in the space under each IPF responses. We have incorporated those fired, gas glares, liquid flares, tanks, category associated with the proposed updated burden adjustments in this fugitives, glycol dehydrator vent, and activity that may impact a particular renewal. Therefore, we are requesting an gas venting. environmental resource. The ‘‘adjustment’’ increase of 52,935 hours ∑ Form MMS–141 (ROV Survey environmental resources listed on this for 1010–0151. The following chart Report) is submitted to report the form are: Site-specific at Offshore details the individual components and observations and information recorded Location such as chemosynthetic respective hour burden estimates of this from 2 sets of ROV monitoring surveys communities, water quality, fisheries to ICR. In calculating the burdens, we to identify high-density biological name a few; Vicinity of Offshore assumed that respondents perform communities that may occur on the Location such as essential fish habitat; certain requirements in the normal seafloor in deep water. The form asks Coastal and Onshore such as beaches course of their activities. We consider respondents for general operator/facility and wetlands. these to be usual and customary and information and a transect drawing of We will protect information from took that into account in estimating the the survey pattern made by the ROV; a respondents considered proprietary burden.
Citation 30 CFR 250 Reporting & recordkeeping requirement Hour burden subpart B
200 through 206 .... General requirements for plans and information ...... Burden included with spe- cific requirements below. 208 ...... Notify MMS and other users of the OCS before conducting ancillary activities ...... 10. 210(a) ...... Submit report summarizing & analyzing data/information obtained or derived from ancillary 1. activities. 210(b) ...... Retain ancillary activities data/information ...... 2. 211 through 228 .... Submit EP and accompanying information (including forms MMS–137, MMS–138, MMS– 640. NEW used in GOMR) and provide notifications. 232(d); 234; 235(a); Submit amended, modified, revised, or supplemental EP, or resubmit disapproved EP ...... 120. 281(d)(3); 283; 284; 285. 241 through 262 .... Submit DPP or DOCD and accompanying information (including forms MMS–137, MMS– 690. 139, MMS–NEW used in GOMR) and provide notifications. 267(d); 272(a); 273; Submit amended, modified, revised, or supplemental DPP or DOCD, or resubmit dis- GOM Region 95. 283; 284; 285. approved DPP or DOCD. Pacific Region 600. 269(b) ...... Submit information on preliminary plans for leases or units in vicinity of proposed develop- 2. ment and production activities. 281(a) ...... Submit various applications ...... Burdens included under ap- propriate subpart or form (1010–0044;1010–0059; 1010–0058; 1010–0050). 282 ...... Retain monitoring plans, data/information ...... 2. Submit monitoring plans ...... 1. 282(b) ...... Submit monitoring reports and data (including form MMS–141 used in GOMR) ...... 2. 288 through 294 .... Submit DWOP ...... 750. 296 through 298 .... Submit CID ...... 443.
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Citation 30 CFR 250 Reporting & recordkeeping requirement Hour burden subpart B
200 through 299 .... General departure and alternative compliance requests not specifically covered elsewhere in 2. subpart B regulations.
Estimated Reporting and the Government; or (iv) as part of its intent to prepare EIS’s for the Fire Recordkeeping ‘‘Non-Hour Cost’’ customary and usual business or private Management Plans at Guadalupe Burden: We have identified no cost practices. Mountains National Park, Carlsbad burdens for this collection. We will summarize written responses Caverns National Park and Big Bend Public Disclosure Statement: The PRA to this notice and address them in our National Park, respectively. The NPS (44 U.S.C. 3501, et seq.) provides that an submission for OMB approval. As a has since determined that agency may not conduct or sponsor a result of your comments, we will make environmental assessments (EA), rather collection of information unless it any necessary adjustments to the burden than EIS’s, are the appropriate displays a currently valid OMB control in our submission to OMB. environmental documentation to number. Until OMB approves a Public Comment Policy: MMS’s proceed with for the Fire Management collection of information, you are not practice is to make comments, including Plans at those parks. obligated to respond. names and addresses of respondents, Comments: Before submitting an ICR available for public review during SUPPLEMENTARY INFORMATION: The NPS to OMB, PRA section 3506(c)(2)(A) regular business hours. If you wish your had begun working on EIS’s for the Fire requires each agency ‘‘* * * to provide name and/or address to be withheld, Management Plans for each park notice * * * and otherwise consult you must state this prominently at the following the publication of the Notices with members of the public and affected beginning of your comment. MMS will of Intent. Internal discussions and agencies concerning each proposed honor this request to the extent meetings, and comments from public collection of information * * *’’. allowable by law; however, anonymous scoping sessions helped frame the Agencies must specifically solicit comments will not be considered. All alternatives and issues related to each comments to: (a) Evaluate whether the submissions from organizations or proposed collection of information is Fire Management Plan. In the businesses, and from individuals development of each EIS, the effects of necessary for the agency to perform its identifying themselves as duties, including whether the the alternatives have been examined in representatives or officials of detail. Based on these findings and the information is useful; (b) evaluate the organizations or businesses, will be input received during public scoping, accuracy of the agency’s estimate of the made available for public inspection in the NPS has decided to proceed with an burden of the proposed collection of their entirety. information; (c) enhance the quality, MMS Information Collection EA as the National Environmental usefulness, and clarity of the Clearance Officer: Arlene Bajusz (202) Policy Act documentation for the information to be collected; and (d) 208–7744. update and review of these parks’ Fire minimize the burden on the Management Plans. respondents, including the use of Dated: December 13, 2004. E.P. Danenberger, At an undetermined date following automated collection techniques or the publication of this Notice of Intent, Chief, Offshore Regulatory Programs. other forms of information technology. the parks will release their Fire Agencies must also estimate the ‘‘non- [FR Doc. 04–27652 Filed 12–16–04; 8:45 am] Management Plan EA’s for 30-day hour cost’’ burdens to respondents or BILLING CODE 4310–MR–P recordkeepers resulting from the public comment. collection of information. Therefore, if FOR FURTHER INFORMATION CONTACT: John you have costs to generate, maintain, DEPARTMENT OF THE INTERIOR Lujan, Superintendent, Guadalupe and disclose this information, you Mountains National Park, HC 60 Box National Park Service should comment and provide your total 400, Salt Flat, TX 79847–9400, capital and startup cost components or Fire Management Plans, Environmental (915)828–3251 x104, annual operation, maintenance, and Impact Statements, Guadalupe [email protected]., John purchase of service components. You Mountains National Park and Big Bend King, Superintendent, Big Bend should describe the methods you use to National Park, TX, and Carlsbad National Park, P.O. Box 129, Big Bend estimate major cost factors, including Caverns National Park, NM National Park, TX 79834–0129, system and technology acquisition, (432)477–1101, expected useful life of capital AGENCY: National Park Service, [email protected], John equipment, discount rate(s), and the Department of the Interior. Benjamin, Acting Superintendent, period over which you incur costs. ACTION: Notices of Intent to prepare Capital and startup costs include, Carlsbad Caverns National Park, 3225 Environmental Assessments for the Fire National Parks Highway Carlsbad, NM among other items, computers and Management Plans at Guadalupe software you purchase to prepare for 88220, (505)785–3027 Mountains National Park, Big Bend [email protected]. collecting information, monitoring, and National Park, and Carlsbad Caverns record storage facilities. You should not National Park. Dated: October 13, 2004. include estimates for equipment or Michael D. Snyder, services purchased: (i) Before October 1, SUMMARY: In Notices of Intent published Deputy Director, Intermountain Region, 1995; (ii) to comply with requirements October 10, 2002 (67 FR 63151) National Park Service. not associated with the information November 15, 2002 (67 FR 69239), and [FR Doc. 04–27607 Filed 12–16–04; 8:45 am] collection; (iii) for reasons other than to June 11, 2003 (68 FR 35002), the provide information or keep records for National Park Service (NPS) announced BILLING CODE 4312–C4–P
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DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Lee FOR FURTHER INFORMATION CONTACT: Jill Baiza, Superintendent, Petrified Forest Medland, Planning and Compliance National Park Service National Park, P.O. Box 2217, Petrified Specialist, Saint Croix National Scenic Forest National Park, Arizona 86028, Riverway, P.O. Box 708, 401 Hamilton General Management Plan Revision, (928) 524–6228, [email protected]. Street, St. Croix Falls, WI 54024, or by Final Environmental Impact Statement, SUPPLEMENTARY INFORMATION: Copies of telephone 715–483–3284, Extension Petrified Forest National Park, AZ the Record of Decision are available 609. from the Superintendent listed above or AGENCY: National Park Service, SUPPLEMENTARY INFORMATION: The Department of the Interior. on the Internet at: http:// Arrowhead-Weston Project (Project) is a planning.nps.gov/plans.cfm. 345kV Electric Transmission Line ACTION: Notice of availability of the Dated: October 15, 2004. proposed by Minnesota Power, Record of Decision on the Final Stephen P. Martin, Wisconsin Public Service Corporation, Environmental Impact Statement for the and American Transmission Company General Management Plan Revision, Director, Intermountain Region, National Park Service. (Applicant) that would run for 220 Petrified Forest National Park. [FR Doc. 04–27608 Filed 12–16–04; 8:45 am] miles from Duluth, Minnesota, to BILLING CODE 4312–52–P Wausau, Wisconsin. The governmental SUMMARY: Pursuant to section 102(2)(C) entity with approval authority for the of the National Environmental Policy overall Project is the Public Service Act of 1969, 83 Stat. 852, 853, codified DEPARTMENT OF THE INTERIOR Commission of Wisconsin (PSCW). The as amended at 42 U.S.C. § 4332(2)(C), PSCW approved the Project in 2001 and the National Park Service announces the National Park Service re-approved it in 2003. According to the availability of the Record of Decision for Applicant, and as reflected in the PSCW the General Management Plan Revision, Notice of Availability of the Final decision, the purpose of the overall Petrified Forest National Park, Arizona. Environmental Impact Statement for Project is to: (1) Strengthen the bulk On October 15, 2004, the Director, the Arrowhead-Weston Transmission transmission system by providing a Intermountain Region, approved the Line River Crossing/Right-of-Way second high-capacity connection across Record of Decision for the project. As Request, Saint Croix National Scenic the Minnesota-Wisconsin interface; and soon as practicable, the National Park Riverway, WI (2) to transmit electricity from the upper Service will begin to implement the Midwest to markets in the eastern AGENCY: National Park Service. preferred alternative contained in the Wisconsin area. FEIS issued on August 25, 2005. The SUMMARY: Pursuant to section 102(2) of The State-approved route of the following course of action will occur the National Environmental Policy Act Project would cross the Namekagon under the selected alternative: Reusing of 1969, the National Park Service (NPS) River, which is part of the Riverway, in and maintaining the historic integrity of announces the availability of the final Washburn County at a location Painted Desert headquarters complex environmental impact statement (FEIS) approximately 10 miles downstream of will be a priority. Visitor services at for the Arrowhead-Weston the city of Hayward, Wisconsin. The Painted Desert Inn (rehabilitated) will Transmission Line River Crossing/Right- NPS has received a right-of-way (ROW) be expanded. Facility improvements of-Way Request, Saint Croix National request from the Applicant to cross the will be made at Rainbow Forest. Park Scenic Riverway, Wisconsin. Riverway with the State-approved lands will be managed similar to now, DATES: There will be a 30-day waiting Project. To reach a decision about the but with greater protection for natural period before the record of decision is ROW request and comply with the and cultural resources from increased signed on the final from the day the NEPA, the NPS is preparing an EIS. The monitoring and adapting to new Environmental Protection Agency Corps of Engineers is a cooperating information. Some trails and turnouts publishes its notice of availability in the agency on the EIS, since they would will be added, and visitor hours will be Federal Register. also need to issue a permit for the river expanded in the north. Most park ADDRESSES: Copies of the FEIS will be crossing. collections will be housed in a new sent to agencies, Tribes, and individuals The Applicants propose to cross the facility. This course of action, along that made substantive comments on the Namekagon River at an existing 161kV with a no action alternative and two draft EIS, and to public libraries electric transmission line corridor other action alternatives were analyzed throughout the project area. Please granted to Xcel Energy as an easement in the Draft and Final Environmental check the Saint Croix National Scenic by private landowners prior to NPS land Impact Statements. The full range of Riverway (SACN) website for a listing of acquisition in the area. All alternatives foreseeable environmental the libraries to which the FEIS will be (except no action) would require consequences was assessed, and sent. The FEIS is approximately 600 additional right-of-way from the NPS. appropriate mitigating measures were pages in length with many figures and The following alternatives are under identified. oversize color plates. Due to the size of consideration for crossing the The Record of Decision includes a the document, it was not possible to Namekagon River: statement of the decision made, provide it over the Internet. A limited No Action (Deny ROW Request): synopsis of other alternatives number of hardcopies are available 161kV line as present on 70′ wood poles considered, the basis for the decision, a upon request on a first-come first serve (would require that the utilities go description of the environmentally basis. Additional copies are available on around the Namekagon River and preferable alternative, a finding on compact disk. To request a hardcopy of reopening of the State process); impairment of park resources and the FEIS or a copy on compact disk, Alternative 1: Double circuit the values, a listing of measures to please write to the Superintendent, 345kV and 161kV lines overhead on minimize environmental harm, an Saint Croix National Scenic Riverway, 145–150′ single steel poles (Applicant’s overview of public involvement in the P.O. Box 708, St. Croix Falls, WI 54024, preferred); decision-making process, and a Attention: Kevin Iverson or telephone Long-span Option: Alternative 1 using conclusion. him at 715–483–3284, Extension 606. long-span conductors (shorter poles set
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back out of line of sight from the river, DEPARTMENT OF THE INTERIOR you must state that request prominently fewer, but thicker conductors); at the beginning of your comment. We National Park Service Alternative 2: Single circuit 345kV will make all submissions from overhead on 120–130′ single steel poles, organizations or businesses, and from Notice of Intent To Prepare an individuals identifying themselves as underground 161kV, transition Environmental Impact Statement for representatives or officials of structures at overhead to underground the General Management Plan for Fort organizations or businesses, available changeover; Raleigh National Historic Site, Manteo, for public inspection in their entirety. Alternative 3: 161kV upgraded on 85– NC DATES: Locations, dates, and times of ′ 95 steel poles, 345kv underground, SUMMARY: Pursuant to section 102(2)(C) public scoping meetings will be transition structures at underground to of the National Environmental Policy published in local newspapers and may overhead changeover; Act of 1969 and National Park Service also be obtained by contacting the Alternative 4: 345kv and 161kV policy in Director’s Order Number 2 National Park Service Southeast underground, transition structures at (Park Planning) and Director’s Order Regional Office, Planning and underground to overhead changeover. Number 12 (Conservation Planning, Compliance Division. This information Environmental Impact Analysis, and will also be published on the General The NPS preferred alternative is Management Plan Web site for Fort alternative 1: Long-span Option. Decision-making) the National Park Service will prepare an Environmental Raleigh. Persons wishing to comment on the Impact Statement for the General ADDRESSES: Scoping suggestions should FEIS may do so by any one of several Management Plan for Fort Raleigh be submitted to the following address to methods. They may mail comments to National Historic Site. The authority for ensure adequate consideration by the Superintendent, Saint Croix National publishing this notice is contained in 40 Service: Superintendent, Fort Raleigh Scenic Riverway, P.O. Box 708, 401 CFR 1506.6. National Historic Site, 1401 National Hamilton Street, St. Croix Falls, The statement will assess potential Park Drive, Manteo, North Carolina, Wisconsin 54024, Attention: Jill environmental impacts associated with 27954. Telephone: 252–473–2111, ext. Medland. They also may comment via e- various types and levels of visitor use 150. _ _ _ mail to sacn aw row [email protected] and resources management within the FOR FURTHER INFORMATION CONTACT: (include name and return address in the National Historic Site. This General Superintendent, Fort Raleigh National e-mail message). Finally, they may Management Plan and Environmental Historic Site, 1401 National Park Drive, hand-deliver comments to Riverway Impact Statement are being prepared in Manteo, North Carolina, 27954. Headquarters, St. Croix National Scenic response to the requirements of the Telephone: 252–473–2111, ext. 150. National Parks and Recreation Act of Riverway, 401 Hamilton Street, St. Croix SUPPLEMENTARY INFORMATION: The Draft 1978, Pub. L. 95–625. The National Park Falls, Wisconsin 54024. and Final General Management Plan Service is currently accepting comments and Environmental Impact Statement The NPS’s practice is to make from interested parties on issues, will be made available to all known comments, including names and home concerns, and suggestions pertinent to interested parties and appropriate addresses of respondents, available for the management of Fort Raleigh. agencies. Full public participation by public review during regular business Suggestions and ideas for managing Federal, State, and local agencies as hours. Individual respondents may the cultural and natural resources and well as other concerned organizations request that we withhold their home visitor experiences at Fort Raleigh are and private citizens is invited address from the record, which we will encouraged. Comments may be throughout the preparation process of honor to the extent allowable by law. submitted in writing to the address this document. listed at the end of this notice or There also may be circumstances in The responsible official for this through the GMP Web site, which is which we would withhold from the Environmental Impact Statement is linked to the park’s Web site at http:// record a respondent’s identity, as Patricia A. Hooks, Regional Director, www.nps.gov/fora. allowable by law. If you wish us to Southeast Region, National Park The National Park Service will withhold your name and/or address, Service, 100 Alabama Street SW., 1924 publish periodic newsletters on the you must state this prominently at the Building, Atlanta, Georgia 30303. beginning of your comment. However, GMP Web site to present scoping issues Dated: October 28, 2004. we will not consider anonymous and preliminary management concepts Patricia A. Hooks, comments. We will make all to the public as they are developed. submissions from organizations or Public meetings to present draft Regional Director, Southeast Region. businesses, and from individuals management concepts will be [FR Doc. 04–27609 Filed 12–16–04; 8:45 am] conducted in the local area. Specific BILLING CODE 4312–KA–P identifying themselves as locations, dates, and times will be representatives or officials of announced in local media and on the organizations or businesses available for GMP Web site. DEPARTMENT OF INTERIOR public inspection in their entirety. Please note that due to public The responsible official is Ernest disclosure requirements, the National National Park Service Quintana, Midwest Regional Director, Park Service, if requested, is required to Notice of Intent To Prepare a General National Park Service. make the names and addresses of those Management Plan and Environmental Dated: October 18, 2004. who submit written comments public. Impact Statement Anonymous comments will not be Alan M. Hutchings, considered. However, individual SUMMARY: Pursuant to section 102(2)(C) Acting Regional Director, Midwest Region. respondents may request that we of the National Environmental Policy [FR Doc. 04–27610 Filed 12–16–04; 8:45 am] withhold their names and addresses Act (NEPA)of 1969, the National Park BILLING CODE 4312–96–P from the public record. If you wish to Service (NPS) announces its intent to withhold your name and/or address, prepare a General Management Plan and
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Environmental Impact Statement (GMP/ SUMMARY: Under the provisions of the Linda Stoll, Superintendent, at 605– EIS) for the George Washington National Environmental Policy Act 745–4600. Birthplace National Monument, (NEPA) of 1969 (42 U.S.C. 4321 et seq.), SUPPLEMENTARY INFORMATION: The NPS Westmoreland County, Virginia. The the National Park Service (NPS) is seeks to complete an EIS to address elk park contains 550 acres that comprise preparing an environmental impact management at WICA. Section 4.4.2 of significant portions of the 17th and 18th statement (EIS) for an Elk Management the NPS Management Policies (2001) century Washington family plantation Plan for Wind Cave National Park provides for the active management of holdings, including the site of the home (WICA), South Dakota. An elk native animals when management of a where George Washington was born and management plan is needed to manage population is necessary because it spent his early years. Prepared the elk population within established occurs in unnaturally high or low byplanners in the NPS Northeast acceptable levels, to identify a range of numbers because of human influence. Region, with assistance from advisors elk management strategies that are An elk management strategy is needed and consultants, the GMP/EIS will compatible with long-term protection of at WICA because past and current propose a long-term approach to other park resources and natural actions within and beyond the park managing the George Washington ecosystems and processes, and to test have created conditions that allow the BirthplaceNational Monument. for and manage disease situations in the WICA elk population to increase with FOR FURTHER INFORMATION CONTACT: elk population. A number of factors little or no control. These conditions Superintendent, George Washington contribute to the need for this plan. The include the insufficient number of elk Birthplace National Monument, (804) elk population within the park has predators, the limited effectiveness of 224–1732 fluctuated since reintroduction and public hunting outside of the park as a SUPPLEMENTARY INFORMATION: Consistent dictated both lethal and translocation population control method for elk that with the site’s mission, NPS policy, control in the past. Due to the range primarily within the park, lack of andother laws and regulations, insufficient number of predators and the significant winter kill and other alternatives will be developed to guide limited movement of elk in and out of environmentally-caused elk mortalities, the management of the siteover the next the park, the elk population will likely high reproductive and survival rates, 15 to 20 years. The alternatives will continue to grow unchecked. Excessive and the discontinuation of translocating incorporate various zoning and browsing caused by high densities of elk elk from the park. managementprescription to ensure may adversely affect mixed-grass prairie Elk were reintroduced to the park in resource preservation and public and other forage, as well as cultural 1913 to restore an extirpated native enjoyment of the site. The resources in the park. Furthermore, this species. The park is surrounded by environmentalconsequences that could plan is needed because the NPS has the thirty-seven miles of 7 foot high and result from implementing the various responsibility to manage the elk four miles of 4.5 foot high woven-wire alternatives will be evaluated inthe population within the park at levels that fence. This fence was designed to allow plan. Impact topics will include cultural are compatible with park goals. for movement of most wildlife, yet and natural resources, visitor DATES: The National Park Service (NPS) confines bison within the park. Wolves experience, parkoperations, the intends to conduct public scoping at and bears have been extirpated since the socioeconomic environment, locations in South Dakota, including late 1800s, and effective natural impairment, and sustainability. The Pierre, Sioux Falls, Rapid City, Custer, predation on ungulates is limited to that public will beinvited to express and Hot Springs. Public scoping is which occurs by mountain lions, opinions about the management of the intended to identify issues and concerns coyotes and bobcats. Since elk site early in the process through that should be addressed in the reintroduction in 1913, the population publicmeetings and other media; and development of an Elk Management has doubled approximately every 3 will have an opportunity to review and Plan for WICA. To be most helpful to years. Research was conducted in the comment on a draftGMP/EIS. Following the scoping process, comments should mid-1960s and again in 2003 to provide public review processes outlined under be received within 60 days of the insight into the forage requirements of NEPA, the final plan will publication of this notice in the Federal elk and other grazers in the park. The becomeofficial, authorizing Register. See details for sending resulting data, which considers the implementation of a preferred comments in SUPPLEMENTARY forage needs of all ungulates in the park, alternative. The target date for the INFORMATION below. Please check local suggested the park could maintain Record ofDecision is December 2007. newspapers, the WICA Web site at http:/ approximately 350–400 elk. Since Dated: November 22, 2004. /www.nps.gov/wica, or contact the name reintroduction, the population has Vidal Martinez, listed below to find out when and where exceeded 400 at various times, Superintendent, George Washington these open houses will be held and to prompting the removal of animals by Birthplace National Monument. view draft documents and other current both lethal and translocation means. In [FR Doc. 04–27606 Filed 12–17–04; 8:45 am] information regarding elk management the fall of 2002, chronic wasting disease BILLING CODE 4312–52–M and the EIS. In addition to this scoping (CWD) was found in the park. The NPS process, there will be additional policy dictates that translocation of elk opportunities to comment on the plan may only occur if the animals are free DEPARTMENT OF THE INTERIOR throughout the planning process, of disease, which removes the including the draft and final document. possibility of translocation of animals National Park Service ADDRESSES: Information will be from WICA. Currently, the elk herd available for public review and numbers about 700, exceeding the Notice of Intent To Prepare an comment at WICA headquarters located Environmental Impact Statement for an maximum number of animals that data 14 miles north of Hot Springs, SD. The suggest can be sustained long-term Elk Management Plan, Wind Cave address is: Wind Cave National Park, National Park, SD without negatively affecting other park RR1, Box 190, Hot Springs, SD 57747. resources. AGENCY: National Park Service, FOR FURTHER INFORMATION CONTACT: Tom A determination of the effects of the Department of the Interior. Farrell, Public Information Officer, or elk management plan will be conducted
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in accordance with NEPA (42 U.S.C. reviews concerning the countervailing circumstances warranted conducting 4372 et seq.), NEPA regulations (40 CFR duty order on sugar from the European full reviews. A record of the 1500–1508), other appropriate Federal Union and the antidumping findings on Commissioners’ votes, the regulations, and NPS procedures and sugar from Belgium, France, and Commission’s statement on adequacy, policies for compliance with those Germany. and any individual Commissioner’s regulations. statements will be available from the The South Dakota Game, Fish and SUMMARY: The Commission hereby gives Office of the Secretary and at the Parks Department will serve as a notice that it will proceed with full Commission’s Web site. Cooperating Agency in the preparation reviews pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. Authority: These reviews are being of the EIS, per NEPA guidelines. conducted under authority of title VII of the If you wish to comment on the 1675(c)(5)) to determine whether Tariff Act of 1930; this notice is published scoping brochure or any other issues revocation of the countervailing duty pursuant to section 207.62 of the associated with the plan, you may order on sugar from the European Union Commission’s rules. submit your comments by any one of and the antidumping findings on sugar Issued: December 13, 2004. from Belgium, France, and Germany several methods. Written comments By order of the Commission. would be likely to lead to continuation may be mailed or hand-delivered to the Marilyn R. Abbott, or recurrence of material injury within Superintendent at the address above. Secretary to the Commission. You may e-mail comments to a reasonably foreseeable time. A [FR Doc. 04–27650 Filed 12–16–04; 8:45 am] [email protected]. Please submit schedule for the reviews will be internet comments as a text file and established and announced at a later BILLING CODE 7020–02–P avoid the use of special characters and date. For further information concerning any form of encryption. Please put in the conduct of these reviews and rules the subject line ‘‘Elk Management Plan,’’ of general application, consult the DEPARTMENT OF LABOR and include your name and return Commission’s Rules of Practice and Procedure, part 201, subparts A through Employment Standards Administration address in your message. If you do not Wage and Hour Division receive a confirmation from the system E (19 CFR part 201), and part 207, that we have received your message, subparts A, D, E, and F (19 CFR part Minimum Wages for Federal and contact Tom Farrell, Public Information 207). Federally Assisted Construction; Officer, at the number listed above. DATES: Effective Date: December 6, 2004. General Wage Determination Decisions Our practice is to make comments, FOR FURTHER INFORMATION CONTACT: General wage determination decisions including names and home addresses of Mary Messer (202) 205–3193), Office of respondents, available for public review of the Secretary of Labor are issued in Investigations, U.S. International Trade accordance with applicable law and are during regular business hours. Commission, 500 E Street SW., Individual respondents may request that based on the information obtained by Washington, DC 20436. Hearing- the Department of Labor from its study we withhold their home addresses from impaired persons can obtain the record, which we will honor to the of local wage conditions and data made information on this matter by contacting available from other sources. They extent allowable by law. There also may the Commission’s TDD terminal on be circumstances in which we would specify the basic hourly wage rates and (202) 205–1810. Persons with mobility fringe benefits which are determined to withhold from the record a respondent’s impairments who will need special identity, as allowable by law. If you be prevailing for the described classes of assistance in gaining access to the laborers and mechanics employed on wish us to withhold your name and/or Commission should contact the Office address, you must state this construction projects of a similar of the Secretary at (202) 205–2000. character and in the localities specified prominently at the beginning of your General information concerning the comment. We will make all submissions therein. Commission may also be obtained by The determinations in these decisions from organizations or businesses, and accessing its Internet server (http:// from individuals identifying themselves of prevailing rates and fringe benefits www.usitc.gov). The public record for have been made in accordance with 29 as representatives or officials of these reviews may be viewed on the organizations or businesses, available CFR part 1, by authority of the Secretary Commission’s electronic docket (EDIS) of Labor pursuant to the provisions of for public inspection in their entirety. at http://edis.usitc.gov. the Davis-Bacon Act of March 3, 1931, Dated: August 20, 2004. SUPPLEMENTARY INFORMATION: On as amended (46 Stat. 1494, as amended, Ernest Quintana, December 6, 2004, the Commission 40 U.S.C. 276a) and of other Federal Regional Director, Midwest Region. determined that it should proceed to statutes referred to in 29 CFR part 1, [FR Doc. 04–27611 Filed 12–16–04; 8:45 am] full reviews in the subject five-year Appendix, as well as such additional BILLING CODE 4312–AL–P reviews pursuant to section 751(c)(5) of statutes as may from time to time be the Act.1 The Commission found that enacted containing provisions for the the domestic interested party group payment of wages determined to be INTERNATIONAL TRADE response to its notice of institution (69 prevailing by the Secretary of Labor in COMMISSION FR 53466, September 1, 2004) was accordance with the Davis-Bacon Act. adequate and that the respondent The prevailing rates and fringe benefits [Investigation Nos. 104–TAA–7 and interested party group response to its determined in these decisions shall, in AA1921–198–200 (Second Review)] notice of institution was inadequate. accordance with the provisions of the Sugar From Belgium, European Union, The Commission also found that other foregoing statutes, constitute the France, and Germany minimum wages payable on Federal and 1 Commissioners Marcia E. Miller and Jennifer A. federally assisted construction projects AGENCY: International Trade Hillman dissented, voting to conduct expedited to laborers and mechanics of the Commission. reviews on the basis that the domestic interested party group response was adequate but the specified classes engaged on contract ACTION: Notice of Commission respondent interested party group response was work of the character and in the determinations to conduct full five-year inadequate. localities described therein.
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Good cause is hereby found for not Rhode Island They are also available electronically by utilizing notice and public comment RI030005 (Jun. 13, 2003) subscription to the Davis-Bacon Online procedure thereon prior to the issuance Volume II Service (http:// of these determinations as prescribed in Virginia davisbacon.fedworld.gov) of the 5 U.S.C. 553 and not providing for delay VA030014 (Jun. 13, 2003) National Technical Information Service in the effective date as prescribed in that VA030044 (Jun. 13, 2003) (NTIS) of the U.S. Department of section, because the necessity to issue VA030059 (Jun. 13, 2003) Commerce at 1–800–363–2068. This current construction industry wage VA030067 (Jun. 13, 2003) subscription offers value-added features determinations frequently and in large Volume III such as electronic delivery of modified volume causes procedures to be wage decisions directly to the user’s None impractical and contrary to the public desktop, the ability to access prior wage interest. Volume IV decisions issued during the year, General wage determination Illinois extensive Help desk Support, etc. decisions, and modifications and IL030001 (Jun. 13, 2003) Hard-copy subscriptions may be supersedeas decisions thereto, contain IL030002 (Jun. 13, 2003) purchased from: Superintendent of no expiration dates and are effective IL030004 (Jun. 13, 2003) Documents, U.S. Government Printing from their date of notice in the Federal IL030005 (Jun. 13, 2003) Office, Washington, DC 20402. (202) Register, or on the date written notice IL030023 (Jun. 13, 2003) 512–1800. IL030039 (Jun. 13, 2003) is received by the agency, whichever is IL030056 (Jun. 13, 2003) When ordering hard-copy earlier. These decisions are to be used IL030059 (Jun. 13, 2003) subscription(s), be sure to specify the in accordance with the provisions of 29 IL030060 (Jun. 13, 2003) State(s) of interest, since subscriptions CFR parts 1 and 5. Accordingly, the IL030062 (Jun. 13, 2003) may be ordered for any or all of the six applicable decision, together with any IL030064 (Jun. 13, 2003) separate Volumes, arranged by State. modifications issued, must be made a Volume V Subscriptions include an annual edition part of every contract for performance of (issued in January or February) which Arkansas the described work within the AR030001 (Jun. 13, 2003) includes all current general wage geographic area indicated as required by AR030008 (Jun. 13, 2003) determinations for the States covered by an applicable Federal prevailing wage AR030027 (Jun. 13, 2003) each volume. Throughout the remainder law and 29 CFR part 5. The wage rates Missouri of the year, regular weekly updates will and fringe benefits, notice of which is MO030003 (Jun. 13, 2003) be distributed to subscribers. published herein, and which are MO030006 (Jun. 13, 2003) MO030010 (Jun. 13, 2003) Signed in Washington, DC this 9th day of contained in the Government Printing December, 2004. Office (GPO) document entitled Volume VI Terry Sullivan, ‘‘General Wage Determinations Issued Utah Acting Chief, Branch of Construction Wage Under The Davis-Bacon And Related UT030034 (Jun. 3, 2003) Determinations. Acts,’’ shall be the minimum paid by Wyoming [FR Doc. 04–27396 Filed 12–16–04; 8:45 am] contractors and subcontractors to WY030006 (Jun. 13, 2003) laborers and mechanics. WY030007 (Jun. 13, 2003) BILLING CODE 4510–27–M Any person, organization, or WY030008 (Jun. 13, 2003) governmental agency having an interest Volume VII in the rates determined as prevailing is California NATIONAL SCIENCE FOUNDATION encouraged to submit wage rate and CA030004 (Jun. 3, 2003) fringe benefit information for CA030013 (Jun. 3, 2003) NSF–NASA–Astronomy and consideration by the Department. CA030029 (Jun. 3, 2003) Astrophysics Advisory Committee Further information and self- CA030030 (Jun. 3, 2003) #13883; Notice of Meeting explanatory forms for the purpose of CA030032 (Jun. 3, 2003) submitting this data may be obtained by CA030033 (Jun. 3, 2003) In accordance with the Federal writing to the U.S. Department of Labor, Nevada Advisory Committee Act (Pub. L. 92– Employment Standards Administration, NV030005 (Jun. 13, 2003) 463, as amended), the National Science Foundation announces the following Wage and Hour Division, Division of General Wage Determination NSF–NASA–Astronomy and Wage Determinations, 200 Constitution Publication Avenue, NW., Room S–3014, Astrophysics Advisory Committee General wage determinations issued meeting (#13883): Washington, DC 20210. under the Davis-Bacon and related Acts, Date and Time: January 18–19, 2005. Modification to General Wage including those noted above, may be Place: National Science Foundation, 4201 Determination Decisions found in the Government Printing Office Wilson Boulevard, Room 330, Arlington, VA. The number of the decisions listed to (GPO) document entitled ‘‘General Wage Type of Meeting: Open. the Government Printing Office determinations Issued Under the Davis- Contact Person: Dr. G. Wayne Van Citters, document entitled ‘‘General Wage Bacon and Related Acts’’. This Director, Division of Astronomical Sciences, Suite 1045, National Science Foundation, Determinations Issued Under the Davis- publication is available at each of the 50 Regional Government Depository 4201 Wilson Blvd., Arlington, VA 22230. Bacon and related Acts’’ being modified Telephone: (703) 292–4908. are listed by Volume and State. Dates of Libraries and many of the 1,400 Government Depository Libraries across Purpose of Meeting: To provide advice and publication in the Federal Register are recommendations to the National Science the country. in parentheses following the decisions Foundation (NSF) and the National General wage determinations issued being modified. Aeronautics and Space Administration under the Davis-Bacon and related Acts (NASA) on issues within the field of Volume I are available electronically at no cost on astronomy and astrophysics that are of Massachusetts the Government Printing Office site at mutual interest and concern to the two MA030016 (Jun. 13, 2003) http://www.access.gpo.gov/davisbacon. agencies.
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Agenda: To hear presentations of current Advisory Committee Act after www.nrc.gov/reading-rm/adams.html programming by representatives from NSF consultation with the Committee under Accession No. ML043380322, and and NASA; to discuss current and potential Management Secretariat, General at the NRC Public Document Room, areas of cooperation between the two agencies; to formulate recommendations for Services Administration. 11555 Rockville Pike, Rockville, MD. continued and new areas of cooperation and FOR FURTHER INFORMATION CONTACT: Please note that on October 25, 2004, mechanisms for achieving them. Andrew L. Bates, Office of the Secretary, the NRC terminated public access to U.S. Nuclear Regulatory Commission, ADAMS and initiated an additional Dated: December 14, 2004. Washington, DC 20555: Telephone 301– security review of publicly available Susanne E. Bolton, 504–1963. documents to ensure that potentially Committee Management Office. sensitive information is removed from Dated: December 13, 2004. [FR Doc. 04–27617 Filed 12–16–04; 8:45 am] the ADAMS database accessible through Andrew L. Bates, BILLING CODE 9555–01–M the NRC’s Web site. Interested members Advisory Committee Management Officer. of the public may obtain copies of the [FR Doc. 04–27612 Filed 12–16–04; 8:45 am] referenced documents for review and/or NUCLEAR REGULATORY BILLING CODE 7590–01–P copying by contacting the Public COMMISSION Document Room pending resumption of public access to ADAMS. The NRC Licensing Support System Advisory NUCLEAR REGULATORY Public Documents Room is located at Review Panel COMMISSION NRC Headquarters in Rockville, MD, and can be contacted at (800) 397–4209, AGENCY: Nuclear Regulatory Notice of Availability and Draft Report for Comment, ‘‘Evaluation of Loss of (301) 415–4737 or by e-mail to Commission. [email protected]. ACTION: Notice of renewal of the Charter Offsite Power Events at Nuclear Power of the Licensing Support Network Plants: 1986–2003’’ FOR FURTHER INFORMATION CONTACT: Dale Advisory Review Panel (LSNARP). Rasmuson, Operating Experience Risk AGENCY: Nuclear Regulatory Analysis Branch, Office of Nuclear SUMMARY: The Licensing Support Commission (NRC). Regulatory Research, telephone (301) System Advisory Review Panel was ACTION: Notice of availability of the 415–7571, e-mail [email protected]. established by the U.S. Nuclear Office of Nuclear Regulatory Research SUPPLEMENTARY INFORMATION: Regulatory Commission as a Federal draft report entitled, ‘‘Evaluation of Loss Advisory Committee in 1989. Its of Offsite Power Events at Nuclear Draft Report Entitled, ‘‘Evaluation of purpose was to provide advice on the Power Plants: 1986–2003,’’ and request Loss of Offsite Power Events at Nuclear fundamental issues of design and for public comment. Power Plants: 1986–2003’’ development of an electronic This report is an update of two SUMMARY: The Nuclear Regulatory information management system to be previous reports analyzing loss of offsite Commission (NRC) is announcing the used to store and retrieve documents power (LOOP) events at U.S. availability of the Office of Nuclear relating to the licensing of a geologic commercial nuclear power plants. Regulatory Research draft report repository for the disposal of high-level LOOP data over the period 1986–2003 entitled, ‘‘Evaluation of Loss of Offsite radioactive waste, and on the operation were collected and analyzed. Frequency Power Events at Nuclear Power Plants: and maintenance of the system. This and duration estimates for critical and 1986–2003.’’ electronic information management shutdown operations were generated for system was known as the Licensing DATES: Comments on this document five categories of LOOPs: plant centered, Support System (LSS). In November, should be submitted by January 31, switchyard centered, grid related, severe 1998 the Commission approved 2005. Comments received after that date weather related, and extreme weather amendments to 10 CFR Part 2 that will be considered to the extent related. Overall, LOOP frequencies renamed the Licensing Support System practicable. To ensure efficient and during critical operation have decreased Advisory Review Panel as the Licensing complete comment resolution, significantly in recent years, while Support Network Advisory Review comments should include references to LOOP durations have increased. Various Panel. the section, page, and line numbers of additional topics of interest were also Membership on the Panel continues the document to which the comment addressed. These topics include to be drawn from those interests that applies, if possible. potential effects of deregulation, will be affected by the use of the LSN, ADDRESSES: Members of the public are seasonal impacts on LOOP frequencies, including the Department of Energy, the invited and encouraged to submit consequential LOOPs and others. NRC, the State of Nevada, the National written comments to Michael Lesar, Finally, additional engineering analyses Congress of American Indians, affected Chief Rules and Directives Branch, of the LOOP data were presented. This units of local governments in Nevada, Office of Administration, Mail Stop T– information is needed in probabilistic the Nevada Nuclear Waste Task Force, 6D59, U.S. Nuclear Regulatory risk assessment models of U.S. and a coalition of nuclear industry Commission, Washington, DC 20555– commercial nuclear power plants to groups. Federal agencies with expertise 0001. Hand-deliver comments attention accurately model current risk from and experience in electronic to Michael Lesar, 11545 Rockville Pike, LOOP and associated station blackout information management systems may Rockville, Maryland, between 7:30 a.m. scenarios. also participate on the Panel. and 4:15 p.m. on Federal workdays. The NRC is seeking public comment The Nuclear Regulatory Commission Comments may also be sent in order to receive feedback from the has determined that renewal of the electronically [email protected]. widest range of parties and to ensure charter for the LSNARP until December This document is available at the that all information relevant to 9, 2006 is in the public interest in Agencywide Documents Access and developing this document is available to connection with duties imposed on the Management System (ADAMS) Public the NRC staff. This document is issued Commission by law. This action is being Electronic Reading Room on the Internet for comment only and is not intended taken in accordance with the Federal at the NRC Web site at http:// for interim use. The NRC will review
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public comments received on the sickness benefits for the period of time ESTIMATE OF ANNUAL RESPONDENT document, incorporate suggested the employee would have to work to BURDEN changes as necessary, and issue the final earn the amount of the allowance. In report for use. order to calculate and provide Annual Time Burden Form #(s) responses (min) (hrs) Dated at Rockville, Maryland, this 13th day payments, the Railroad Retirement of December, 2004. Board (RRB) must collect and maintain G–99d ...... 1,230 5 103 For the Nuclear Regulatory Commission. records of separation allowances and Charles E. Ader, severance payments which were subject Additional Information or Comments: Director, Division of Risk Analysis and to Tier II taxation from railroad To request more information regarding Applications, Office of Nuclear Regulatory employers. The RRB uses Form BA–9 to any of the information collections listed Research. obtain, on a quarterly basis, the above or to obtain copies of the [FR Doc. 04–27613 Filed 12–16–04; 8:45 am] information needed from railroad information collection justifications, BILLING CODE 7590–01–P employers concerning the separation forms, and/or supporting material, allowances and severance payments please call the RRB Clearance Officer at made to railroad employees and/or the (312) 751–3363 or send an e-mail RAILROAD RETIREMENT BOARD survivors of railroad employees. All request to [email protected]. reports contain a one-line entry for each Comments regarding the information Proposed Collections; Comment such payment or adjustment. collections should be addressed to Request Completion is mandatory. Responses are Ronald J. Hodapp, Railroad Retirement requested quarterly. The RRB proposes Board, 844 North Rush Street, Chicago, Summary: In accordance with the Illinois 60611–2092 or send an e-mail to no changes to Form BA–9. requirement of section 3506(c)(2)(A) of [email protected]. Written the Paperwork Reduction Act of 1995 The estimated annual respondent comments should be received within 60 which provides opportunity for public burden is as follows: days of this notice. comment on new or revised data Charles Mierzwa, collections, the Railroad Retirement ESTIMATE OF ANNUAL RESPONDENT Clearance Officer. Board (RRB) publishes periodic BURDEN summaries of proposed data collections. [FR Doc. 04–27649 Filed 12–16–04; 8:45 am] The information collections numbered Annual Time Burden BILLING CODE 7905–01–P below are pending at RRB and will be Form # responses (min) (hrs) submitted to OMB within 60 days from the date of this notice. BA–9 ...... 2,030 75 2,537 SECURITIES AND EXCHANGE Comments Are Invited on: (a) COMMISSION Whether the proposed information 2. Title and Purpose of Information [File No. 500–1] collection is necessary for the proper Collection performance of the functions of the Representative Payee Parental Custody Absolute Health and Fitness, Inc.; agency, including whether the Order of Suspension of Trading information has practical utility; (b) the Monitoring; OMB 3220–0176 accuracy of the RRB’s estimate of the December 15, 2004. Under section 12(a) of the Railroad burden of the collection of the It appears to the Securities and information; (c) ways to enhance the Retirement Act (RRA), the Railroad Exchange Commission that there is a quality, utility, and clarity of the Retirement Board (RRB) is authorized to lack of current and accurate information information to be collected; and (d) select, make payments to, and to concerning the securities of Absolute ways to minimize the burden related to conduct transactions with, a Health and Fitness, Inc. (‘‘Absolute the collection of information on beneficiary’s relative or some other Health’’) because of questions regarding respondents, including the use of person willing to act on behalf of the the accuracy of assertions by Absolute automated collection techniques or beneficiary as a representative payee. Health, and by others, in public other forms of information technology. The RRB is responsible for determining statements to investors concerning, if direct payment to the beneficiary or among other things, its corporate status 1. Title and Purpose of Information payment to a representative payee and its ownership of certain health and Collection would best serve the beneficiary’s fitness facilities. Railroad Separation Allowance or interest. Inherent in the RRB’s The Commission is of the opinion that Severance Pay Report; OMB 3220–0173 authorization to select a representative the public interest and the protection of investors require a suspension of trading Section 6 of the Railroad Retirement payee is the responsibility to monitor in the securities of the above listed Act provides for a lump-sum payment to the payee to assure that the beneficiary’s interests are protected. Triennially, the company. an employee or the employee’s Therefore, it is ordered, pursuant to RRB utilizes Form G–99d, Parental survivors equal to the Tier II taxes paid Section 12(k) of the Securities Exchange by the employee on a separation Custody Report, to obtain information Act of 1934, that trading in the above allowance or severance payment for needed to verify that a parent-for-child listed company is suspended for the which the employee did not receive representative payee still has custody of period from 9:30 a.m. EST December 15, credits toward retirement. The lump- the child. One response is required from 2004 through 11:59 p.m. EST, on sum is not payable until retirement each respondent. The RRB proposes no December 29, 2004. benefits begin to accrue or the employee changes to Form G–99d. dies. Also, section 4(a–1)(iii) of the By the Commission. The estimated annual respondent Railroad Unemployment Insurance Act Margaret H. McFarland, burden is as follows: provides that a railroad employee who Deputy Secretary. is paid a separation allowance is [FR Doc. 04–27766 Filed 12–15–04; 1:39 pm] disqualified for unemployment and BILLING CODE 8010–01–P
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SECURITIES AND EXCHANGE by the Exchange. On December 3, 2004, the proposed rule change. The text of COMMISSION the Exchange filed Amendment No. 1 to these statements may be examined at the proposed rule change.3 The the places specified in Item IV below. [File No. 500–1] Exchange filed the proposal, as The Exchange has prepared summaries, Aimsi Technologies, Inc.; Order of amended, as a ‘‘non-controversial’’ set forth in Sections A, B, and C below, Suspension of Trading proposed rule change pursuant to of the most significant aspects of such Section 19(b)(3)(A)(iii) of the Act 4 and statements. December 15, 2004. Rule 19b–4(f)(6) thereunder.5 The It appears to the Securities and Commission is publishing this notice to A. Self-Regulatory Organization’s Exchange Commission that there is a solicit comments on the proposed rule Statement of the Purpose of, and lack of current and accurate information change, as amended, from interested Statutory Basis for, the Proposed Rule concerning the securities of Aimsi persons. Change Technologies, Inc. (‘‘AIMT’’) because of I. Self-Regulatory Organization’s 1. Purpose questions regarding the accuracy of Statement of the Terms of Substance of statements made by AIMT to the public the Proposed Rule Change The Exchange proposes to permit the in press releases and in fax tout sheets hours during which options contracts concerning, among other things, Aimsi’s The Exchange proposes to amend a overlying the Nasdaq 100 Index Trading contract with China Global Distribution section of the Boston Options Exchange Stock (the ‘‘Index Trading Stock’’) may Corp. for the distribution of Aimsi’s (‘‘BOX’’) rules regarding the hours be made on BOX to remain unchanged Automatic Large Area Remote Mapper. during which options transactions may after the Index Trading Stock lists on The Commission is of the opinion that be made on BOX. The text of the the Nasdaq Stock Market (‘‘Nasdaq’’) the public interest and the protection of proposed rule change, as amended, is beginning December 1, 2004. Prior to investors require a suspension of trading set forth below. December 1, 2004, the Index Trading in the securities of the above-listed Proposed new language is in italics. Stock was listed on the American Stock company. * * * * * Exchange and trading in the options Therefore, it is ordered, pursuant to CHAPTER V. DOING BUSINESS ON contracts overlying the Index Trading Section 12(k) of the Securities Exchange BOX Stock traded on BOX until 4:15 p.m. Act of 1934, that trading in the above- Eastern Time. listed company is suspended for the Sec. 1–2 No Change Currently, Chapter V, Section 3(b) of period from 9:30 a.m. EST, on December Sec. 3 Days and Hours of Business 15, 2004 through 11:59 p.m. EST, on BOX’s rules provides that hours during December 29, 2004. (a) No change. which transactions in options on (b) Except for unusual conditions as individual stocks may be made on BOX By the Commission. may be determined by the Board, hours shall correspond to the normal business Margaret H. McFarland, during which transactions in options on days and hours for business set forth in Deputy Secretary. individual stocks may be made on BOX the rules of the primary market trading [FR Doc. 04–27767 Filed 12–15–04; 1:39 pm] shall correspond to the normal business the securities underlying BOX options; BILLING CODE 8010–01–P days and hours for business set forth in provided, however, that transactions the rules of the primary market trading may be effected in an options class on the securities underlying BOX options; BOX until two (2) minutes after the SECURITIES AND EXCHANGE provided, however, that transactions primary market on which the COMMISSION may be effected in an options class on underlying security trades closes for [Release No. 34–50834; File No. SR–BSE– BOX until two (2) minutes after the trading. Because Nasdaq will trade the 2004–55] primary market on which the Index Trading Stock until 4 p.m. Eastern underlying security trades closes for Time, under its current rules, BOX can Self-Regulatory Organizations; Notice trading. (See BSE Rules Chapter I–B, only trade in the options contracts of Filing and Immediate Effectiveness ‘‘Business Hours’’, Section 1, ‘‘Primary overlying the Index Trading Stock until of Proposed Rule Change and Session’’). Notwithstanding the 4:02 p.m. Eastern Time. Amendment No. 1 Thereto by the foregoing, transactions may be effected BOX Market Makers have requested Boston Stock Exchange, Inc. Relating in options contracts overlying the that BOX consider maintaining the to Trading Hours for Options Contracts Nasdaq 100 Index Trading Stock on status quo, and allow trading in options Overlying the Nasdaq 100 Index BOX until 4:15 p.m. contracts overlying the Index Trading Trading Stock on the Boston Options (c) No change. Exchange Stock to continue until 4:15 p.m. * * * * * Eastern Time. The rules of other options December 10, 2004. II. Self-Regulatory Organization’s exchanges currently provide for trading Pursuant to Section 19(b)(1) of the Statement of the Purpose of, and in these options contracts to continue Securities Exchange Act of 1934 Statutory Basis for, the Proposed Rule until this time.6 BOX believes the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Change investment community would benefit notice is hereby given that on December In its filing with the Commission, the from maintaining continuity and 1, 2004, the Boston Stock Exchange, Inc. Exchange included statements consistency in the marketplace. As a (‘‘BSE’’ or ‘‘Exchange’’) filed with the concerning the purpose of, and statutory result, the Exchange proposes to amend Securities and Exchange Commission basis for, the proposed rule change and Chapter V, Section 3(b) of BOX’s rules (‘‘Commission’’) the proposed rule discussed any comments it received on to allow trading in options contracts change as described in Items I and II overlying the Index Trading Stock to below, which Items have been prepared 3 Amendment No. 1 superseded and replaced the continue until 4:15 p.m. Eastern Time. proposed rule change in its entirety. 1 15 U.S.C. 78s(b)(1). 4 15 U.S.C. 78s(b)(3)(A)(iii). 6 See Rule 7.1, commentary .02 of the rules of the 2 17 CFR 240.19b–4. 5 17 CFR 240.19b–4(f)(6). Pacific Exchange.
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2. Statutory Basis that accelerating the operative date will Commission, and all written The Exchange believes that the allow the trading hours for options communications relating to the proposal is consistent with the contracts overlying the Index Trading proposed rule change between the requirements of Section 6(b) of the Act,7 Stock to remain unchanged and provide Commission and any person, other than in general, and Section 6(b)(5) of the continuity to the marketplace. those that may be withheld from the Act,8 in particular, in that it is designed Therefore, the foregoing rule change has public in accordance with the to prevent fraudulent and manipulative become immediately effective and provisions of 5 U.S.C. 552, will be acts and practices, to promote just and operative upon filing pursuant to available for inspection and copying in 12 equitable principles of trade, to remove Section 19(b)(3)(A)(iii) of the Act and the Commission’s Public Reference 13 impediments to and perfect the Rule 19b–4(f)(6) thereunder. Room, 450 Fifth Street, NW., mechanism of a free and open market At any time within 60 days of the Washington, DC 20549. Copies of such and a national market system, and, in filing of the proposed rule change, the filing also will be available for general, to protect investors and the Commission may summarily abrogate inspection and copying at the principal public interest. such rule change if it appears to the office of the Exchange. All comments Commission that such action is received will be posted without change; B. Self-Regulatory Organization’s necessary or appropriate in the public the Commission does not edit personal Statement on Burden on Competition interest, for the protection of investors, identifying information from The Exchange does not believe that or otherwise in furtherance of the submissions. You should submit only 14 the proposed rule change will impose purposes of the Act. information that you wish to make any burden on competition not IV. Solicitation of Comments available publicly. All submissions necessary or appropriate in furtherance should refer to File Number SR–BSE– Interested persons are invited to of the purposes of the Act. 2004–55 and should be submitted on or submit written data, views and before January 7, 2005. C. Self-Regulatory Organization’s arguments concerning the foregoing, Statement on Comments on the including whether the proposed rule For the Commission, by the Division of Market Regulation, pursuant to delegated Proposed Rule Change Received From change is consistent with the Act. authority.15 Members, Participants, or Others Comments may be submitted by any of Margaret H. McFarland, the following methods: The Exchange has neither solicited Deputy Secretary. nor received comments on the proposed Electronic Comments [FR Doc. E4–3701 Filed 12–16–04; 8:45 am] rule change. • Use the Commission’s Internet BILLING CODE 8010–01–P III. Date of Effectiveness of the comment form (http://www.sec.gov/ Proposed Rule Change and Timing for rules/sro.shtml); or Commission Action • Send an e-mail to rule- SECURITIES AND EXCHANGE [email protected]. Please include File COMMISSION The Exchange has designated the Number SR–BSE–2004–55 on the proposed rule change, as amended, as a subject line. [Release No. 34–50840; File No. SR–CBOE– ‘‘non-controversial’’ rule change 2004–79] pursuant to Section 19(b)(3)(A)(iii) of Paper Comments the Act 9 and subparagraph (f)(6) of Rule • Send paper comments in triplicate Self-Regulatory Organizations; Notice 19b–4 thereunder.10 The Exchange to Jonathan G. Katz, Secretary, of Filing and Immediate Effectiveness represents that the foregoing rule Securities and Exchange Commission, of Proposed Rule Change and change: (1) Does not significantly affect 450 Fifth Street, NW., Washington, DC Amendment No. 1 Thereto by the the protection of investors or the public 20549–0609. Chicago Board Options Exchange, interest; (2) does not impose any All submissions should refer to File Incorporated Relating to the Trading significant burden on competition; and Number SR–BSE–2004–55. This file Hours for Options on Units and (3) by its terms, does not become number should be included on the Options on the Nasdaq-100 Index operative for 30 days after the date of subject line if e-mail is used. To help the Tracking Stock this filing, or such shorter time as the Commission process and review your December 10, 2004. Commission may designate if consistent comments more efficiently, please use Pursuant to Section 19(b)(1) of the with the protection of investors and the only one method. The Commission will Securities Exchange Act of 1934 public interest. The Exchange has post all comments on the Commission’s (‘‘Act’’),1 and Rule 19b–4 thereunder,2 requested that the Commission waive Internet Web site (http://www.sec.gov/ notice is hereby given that on November the five-day pre-filing notice rules/sro.shtml). Copies of the 30, 2004, the Chicago Board Options requirement and the 30-day operative submission, all subsequent Exchange, Incorporated (‘‘CBOE’’ or delay period for ‘‘non-controversial’’ amendments, all written statements ‘‘Exchange’’) filed with the Securities proposals and make the proposed rule with respect to the proposed rule and Exchange Commission change, as amended, effective and change that are filed with the operative upon filing. (‘‘Commission’’) the proposed rule change as described in Items I and II The Commission has determined to considered the proposed rule’s impact on waive the five-day pre-filing notice efficiency, competition, and capital formation. 15 below, which Items have been prepared requirement and the 30-day operative U.S.C. 78c(f). by the Exchange. On December 10, delay period.11 The Commission notes 12 15 U.S.C. 78s(b)(3)(A)(iii). 2004, the Exchange filed Amendment 13 17 CFR 240.19b–4(f)(6). No. 1 to the proposed rule change.3 The 14 For purposes of calculating the 60-day period 7 15 U.S.C. 78f(b). within which the Commission may summarily 8 15 15 U.S.C. 78f(b)(5). abrogate the proposed rule change under Section 17 CFR 200.30–3(a)(12). 9 15 U.S.C. 78s(b)(3)(A)(iii). 19(b)(3)(C) of the Act, the Commission considers 1 15 U.S.C. 78s(b)(1). 10 17 CFR 240.19b–4(f)(6). that period to commence on December 3, 2004, the 2 17 CFR 240.19b–4. 11 For purposes only of accelerating the operative date the Exchange filed Amendment No. 1 to the 3 Amendment No. 1 is incorporated into this date of this proposal, the Commission has proposed rule change. See 15 U.S.C. 78s(b)(3)(C). notice.
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Exchange filed the proposal, as II. Self-Regulatory Organization’s p.m. (CST). CBOE represents that this amended, as a ‘‘non-controversial’’ Statement of the Purpose of, and will serve to avoid any confusion in the proposed rule change pursuant to Statutory Basis for, the Proposed Rule marketplace over the trading hours of Section 19(b)(3)(A)(iii) of the Act 4 and Change QQQs options in light of Nasdaq’s shift Rule 19b–4(f)(6) thereunder.5 The In its filing with the Commission, the of the listing venue of QQQs and to Commission is publishing this notice to Exchange included statements codify the trading hours for options on solicit comments on the proposed rule concerning the purpose of, and statutory Units and on QQQs. change, as amended, from interested basis for, the proposed rule change and 2. Statutory Basis persons. discussed any comments it received on the proposed rule change. The text of The Exchange believes that the I. Self-Regulatory Organization’s those statements may be examined at proposal is consistent with the 9 Statement of the Terms of Substance of the places specified in Item IV below. requirements of Section 6(b) of the Act, the Proposed Rule Change The Exchange has prepared summaries, in general, and Section 6(b)(5) of the Act,10 in particular, in that it is designed The Exchange proposes to amend its set forth in Sections A, B, and C below, of the most significant aspects of such to prevent fraudulent and manipulative rules relating to the hours of trading for acts and practices, to promote just and 6 statements. options on Units and options on the equitable principles of trade, to remove Nasdaq-100 Index Tracking Stock. The A. Self-Regulatory Organization’s impediments to and perfect the text of the proposed rule change is set Statement of the Purpose of, and the mechanism of a free and open market forth below. Statutory Basis for, the Proposed Rule and a national market system, and, in Proposed new language is in italics. Change general, to protect investors and the Proposed deletions are in brackets. 1. Purpose public interest. * * * * * The Exchange proposes to amend B. Self-Regulatory Organization’s CHAPTER VI CBOE Rule 6.1 (‘‘Days and Hours of Statement on Burden on Competition Business’’) by adding a new CBOE does not believe that the Doing Business on the Exchange Floor Interpretation and Policy .03 that will proposed rule change will impose any (Rule 6.1–6.85) codify CBOE’s practice of trading 7 burden on competition not necessary or Section A: General options on Units and options on the appropriate in furtherance of the Nasdaq-100 Index Tracking Stock purposes of the Act. Rule 6.1—Days and Hours of (‘‘QQQs’’) until 3:15 p.m. (CST). Since Business. CBOE began trading options on Units C. Self-Regulatory Organization’s and options on the QQQs, the trading Statement on Comments on the Rule 6.1.—No Change. hours for these options have lasted until Proposed Rule Change Received From * * * Interpretations and Policies: 3:15 p.m. (CST). Members, Participants, or Others The 3:15 p.m. termination time .01–.02 No Change. No written comments were solicited coincides with the trading hours or received with respect to the proposed .03 Options on Units, as defined termination time for options on stock rule change. under Interpretation and Policy .06 to indexes, including options on the NDX Rule 5.3, and options on the Nasdaq- index. Recently, the Nasdaq Stock III. Date of Effectiveness of the 100 Index Tracking Stock may be traded Market, Inc. (‘‘Nasdaq’’) announced its Proposed Rule Change and Timing for on the Exchange until 3:15 p.m. each intention to transfer the listing of the Commission Action business day. QQQs from the American Stock The Exchange has designated the .04 The Board of Directors has Exchange (‘‘Amex’’) to Nasdaq with proposed rule change, as amended, as a determined that the Exchange will not trading to begin on December 1, 2004. ‘‘non-controversial’’ rule change The QQQs traded on the Amex until be open for business on New Year’s Day, pursuant to Section 19(b)(3)(A)(iii) of 3:15 p.m. (CST), and as of December 1, Martin Luther King, Jr. Day, Presidents’ the Act11 and subparagraph (f)(6) of 2004, Nasdaq will close trading on the Day, Good Friday, Memorial Day, Rule 19b–4 thereunder.12 The Exchange QQQs at 3 p.m. (CST), but will allow Independence Day, Labor Day, represents that the foregoing rule trading in the QQQs to continue in after Thanksgiving Day or Christmas Day. change: (1) Does not significantly affect hours trading until 7 p.m. (CST). CBOE The Board has also determined that, the protection of investors or the public intends to continue to trade options on when any holiday observed by the interest; (2) does not impose any the QQQs during its regular trading Exchange falls on a Saturday, the significant burden on competition; and session until 3:15 p.m. (CST), as it does Exchange will not be open for business (3) by its terms, does not become on the preceding Friday, and that when options on other index or basket products. operative for 30 days after the date of any holiday observed by the Exchange CBOE notes that the Amex and the this filing, or such shorter time as the falls on a Sunday, the Exchange will not Pacific Exchange, Inc. (‘‘PCX’’) are Commission may designate if consistent be open for business on the following allowed under their respective rules to with the protection of investors and the Monday, unless unusual business specifically trade options on QQQs until public interest. The Exchange has conditions exist at the time. 3:15 p.m. (CST).8 The new requested that the Commission waive .05 [.04] No Change. Interpretation and Policy .03 will codify the five-day pre-filing notice requirement and the 30-day operative Rule 6.2–6.85 No Change. CBOE’s longstanding practice of trading options on QQQs and Units until 3:15 delay period for ‘‘non-controversial’’ * * * * * proposals and make the proposed rule 7 Interpretation and Policy .06 to CBOE Rule 5.3 4 15 U.S.C. 78s(b)(3)(A)(iii). provides the listing standards for Units and other 9 15 U.S.C. 78f(b). 5 17 CFR 240.19b–4(f)(6). similar types of products. 10 15 U.S.C. 78f(b)(5). 6 ‘‘Units’’ are defined in Interpretation and Policy 8 See Commentary .02 to Amex Rule 1 and 11 15 U.S.C. 78s(b)(3)(A)(iii). .06 to CBOE Rule 5.3. Commentary .02 to PCX Rule 7.1. 12 17 CFR 240.19b–4(f)(6).
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change, as amended, effective and only one method. The Commission will by the CBOE. The Commission is operative upon filing. post all comments on the Commission’s publishing this notice to solicit The Commission has determined to Internet Web site (http://www.sec.gov/ comments on the proposed rule change waive the five-day pre-filing notice rules/sro.shtml). Copies of the from interested parties. requirement and the 30-day operative submission, all subsequent I. Self Regulatory Organization’s delay period.13 The Commission notes amendments, all written statements Statement of the Terms and Substance that accelerating the operative date will with respect to the proposed rule of the Proposed Rule Change allow the trading hours for options on change that are filed with the Units and options on the QQQs to Commission, and all written CBOE proposes to amend its Fee remain unchanged and provide communications relating to the Schedule to establish a $.10 per contract continuity to the marketplace. proposed rule change between the license fee on all Designated Primary Therefore, the foregoing rule change has Commission and any person, other than Market-Maker and market-maker become immediately effective and those that may be withheld from the contracts traded in options on the Mini- operative upon filing pursuant to public in accordance with the Nasdaq-100 Index (‘‘MNX’’). The text of Section 19(b)(3)(A)(iii) of the Act 14 and provisions of 5 U.S.C. 552, will be the proposed rule change is available at Rule 19b–4(f)(6) thereunder.15 available for inspection and copying in the Office of the Secretary, CBOE and at At any time within 60 days of the the Commission’s Public Reference the Commission. filing of the proposed rule change, the Room, 450 Fifth Street, NW., II. Self Regulatory Organization’s Commission may summarily abrogate Washington, DC 20549. Copies of such Statement of the Purpose of, and such rule change if it appears to the filing also will be available for Statutory Basis for, the Proposed Rule Commission that such action is inspection and copying at the principal Change necessary or appropriate in the public office of the Exchange. All comments interest, for the protection of investors, received will be posted without change; In its filing with the Commission, or otherwise in furtherance of the the Commission does not edit personal CBOE included statements concerning purposes of the Act.16 identifying information from the purpose of and basis for the submissions. You should submit only proposed rule change and discussed any IV. Solicitation of Comments information that you wish to make comments it received on the proposed Interested persons are invited to available publicly. All submissions rule change. The text of these statements submit written data, views and should refer to File Number SR–CBOE– may be examined at the places specified arguments concerning the foregoing, 2004–79 and should be submitted on or in Item IV below. The CBOE has including whether the proposed rule before January 7, 2005. prepared summaries, set forth in Sections A, B, and C below, of the most change is consistent with the Act. For the Commission, by the Division of Comments may be submitted by any of Market Regulation, pursuant to delegated significant aspects of such statements. the following methods: authority.17 A. Self-Regulatory Organization’s Margaret H. McFarland, Electronic Comments Statement of the Purpose of, and Deputy Secretary. Statutory Basis for, Proposed Rule • Use the Commission’s Internet [FR Doc. E4–3700 Filed 12–16–04; 8:45 am] Change comment form (http://www.sec.gov/ BILLING CODE 8010–01–P rules/sro.shtml); or 1. Purpose • Send an e-mail to rule- The Exchange proposes to establish a [email protected]. Please include File SECURITIES AND EXCHANGE $.10 per contract license fee on all Number SR–CBOE–2004–79 on the COMMISSION Designated Primary Market-Maker subject line. (‘‘DPM’’) and market-maker contracts [Release No. 34–50837; File No. SR–CBOE– Paper Comments 2004–76] traded in MNX options. Currently, the MNX DPM is charged • Send paper comments in triplicate Self Regulatory Organizations; Notice a $.25 per contract supplemental to Jonathan G. Katz, Secretary, of Filing and Immediate Effectiveness transaction fee for transactions for its Securities and Exchange Commission, of Proposed Rule Change by the proprietary account, in addition to the 450 Fifth Street, NW., Washington, DC Chicago Board Options Exchange, Inc. regular transaction fee of $.24 per 20549–0609. Relating to a DPM and Market-Maker contract. The $.25 per contract All submissions should refer to File Transaction Fee in Options on the supplemental transaction fee is charged Number SR–CBOE–2004–79. This file Mini-Nasdaq-100 Index to the DPM to assist the Exchange in number should be included on the offsetting some of the royalty fees that subject line if e-mail is used. To help the December 10, 2004. the Exchange must pay to the Nasdaq Commission process and review your Pursuant to Section 19(b)(1) of the Stock Market (‘‘Nasdaq’’) for its license comments more efficiently, please use Securities Exchange Act of 1934 (the to trade the MNX product.3 ‘‘Act’’),1 and Rule 19b–4 thereunder2 On November 23, 2004, MNX options 13 For purposes only of accelerating the operative notice is hereby given that on November will begin trading on the Exchange’s date of this proposal, the Commission has 23, 2004, the Chicago Board Options Hybrid Trading System (‘‘Hybrid’’). In considered the proposed rule’s impact on Exchange, Inc. (‘‘CBOE’’ or the efficiency, competition, and capital formation. 15 light of MNX options moving to the U.S.C. 78c(f). ‘‘Exchange’’) filed with the Securities Hybrid system, the Exchange has 14 15 U.S.C. 78s(b)(3)(A)(iii). and Exchange Commission determined to spread the license fee 15 17 CFR 240.19b–4(f)(6). (‘‘Commission’’) the proposed rule obligation among all market-makers in 16 For purposes of calculating the 60-day period change as described in Items I, II and III the MNX trading crowd, including the within which the Commission may summarily below, which Items have been prepared abrogate the proposed rule change under Section DPM. Instead of assessing only the MNX 19(b)(3)(C) of the Act, the Commission considers that period to commence on December 10, 2004, the 17 17 CFR 200.30–3(a)(12). 3 Securities Exchange Act Release No. 43226 date the Exchange filed Amendment No. 1 to the 1 15 U.S.C. 78s(b)(1). (August 29, 2000), 65 FR 54322 (September 7, 2000) proposed rule change. See 15 U.S.C. 78s(b)(3)(C). 2 17 CFR 240.19b–4. (SR–CBOE–00–33).
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DPM a supplemental fee of $.25 per to the Commission that such action is For the Commission, by the Division of contract, the Exchange proposes to necessary or appropriate in the public Market Regulation, pursuant to delegated assess the MNX DPM and all MNX interest, for the protection of investors, authority.9 market-makers a license fee of $.10 per or otherwise in furtherance of the Margaret H. McFarland, contract (in addition to the regular purposes of the Act. Deputy Secretary. transaction fee of $.24 per contract) to [FR Doc. E4–3703 Filed 12–16–04; 8:45 am] IV. Solicitation of Comments help the Exchange meet its license fee BILLING CODE 8010–01–P obligation to Nasdaq. Interested persons are invited to The Exchange believes that the submit written data, views, and proposed license fee results in a more arguments concerning the foregoing, SECURITIES AND EXCHANGE equitable allocation of the MNX license including whether the proposed rule COMMISSION fee obligation in MNX’s new Hybrid change, is consistent with the Act. Trading System environment. The Comments may be submitted by any of [Release No. 34–50839; File No. SR–ISE– proposed license fee is consistent with the following methods: 2004–39] similar license fees that the Exchange has previously implemented to recover Electronic Comments Self-Regulatory Organizations; Notice license costs for the RUT and DJX • Use the Commission’s Internet of Filing and Immediate Effectiveness option classes.4 The Exchange intends comment form (http://www.sec.gov/ of Proposed Rule Change and to implement this license fee on rules/sro.shtml); or Amendment Nos. 1 and 2 by the December 1, 2004. • Send an e-mail to rule- International Securities Exchange, Inc., 2. Statutory Basis [email protected]. Please include File Relating to the Hours of Trading for Number SR–CBOE–2004–76 on the Options on Fund Shares, Including the The Exchange believes that the subject line. Nasdaq 100 Tracking Stock proposed rule change is consistent with Section 6(b) of the Act,5 in general, and Paper Comments December 10, 2004. furthers the objectives of Section 6(b)(4) • Pursuant to Section 19(b)(1) of the 6 Send paper comments in triplicate of the Act in particular, in that it is to Jonathan G. Katz, Secretary, Securities Exchange Act of 1934 designed to provide for the equitable Securities and Exchange Commission, (‘‘Act’’),1 and Rule 19b–4 thereunder,2 allocation of reasonable dues, fees, and 450 Fifth Street, NW., Washington, DC notice is hereby given that on December other charges among CBOE members. 20549–0609. 2, 2004, the International Securities B. Self-Regulatory Organization’s All submissions should refer to File Exchange, Inc. (‘‘Exchange’’ or ‘‘ISE’’) Statement on Burden on Competition Number SR–CBOE–2004–76. This file filed with the Securities and Exchange Commission (‘‘Commission’’) the CBOE does not believe that the number should be included on the proposed rule change as described in proposed rule change will impose any subject line if e-mail is used. To help the Items I and II below, which Items have burden on competition that is not Commission process and review your been prepared by the Exchange. On necessary or appropriate in furtherance comments more efficiently, please use December 6, 2004, the Exchange filed of purposes of the Act. only one method. The Commission will post all comments on the Commission’s Amendment No. 1 to the proposed rule C. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ change, and on December 9, 2004, the Statement on Comments on the rules/sro.shtml). Copies of the Exchange filed Amendment No. 2 to the Proposed Rule Change Received from submission, all subsequent proposed rule change.3 The Exchange Members, Participants or Others amendments, all written statements filed the proposed rule change, as No written comments were solicited with respect to the proposed rule amended, as a ‘‘non-controversial’’ or received with respect to the proposed change that are filed with the proposed rule change pursuant to rule change. Commission, and all written Section 19(b)(3)(A)(iii) of the Act4 and communications relating to the Rule 19b–4(f)(6) thereunder.5 The III. Date of Effectiveness of the proposed rule change between the Commission is publishing this notice to Proposed Rule Change and Timing for Commission and any person, other than solicit comments on the proposed rule Commission Action those that may be withheld from the change, as amended, from interested Because the foregoing rule change public in accordance with the persons. establishes or changes a due, fee, or provisions of 5 U.S.C. 552, will be I. Self-Regulatory Organization’s other charge imposed by the Exchange, available for inspection and copying in Statement of the Terms of Substance of it has become effective pursuant to the Commission’s Public Reference the Proposed Rule Change Section 19(b)(3)(A)(ii) 7 of the Act and Section, 450 Fifth Street, NW., subparagraph (f)(2) of Rule 19b–4 8 Washington, DC 20549. Copies of such ISE proposes to codify its existing thereunder. At any time within 60 days filing also will be available for policy relating to hours of trading for of the filing of the proposed rule change, inspection and copying at the principal options on certain Fund Shares, the Commission may summarily office of the CBOE. All comments including the Nasdaq 100 Tracking abrogate such rule change if it appears received will be posted without change; Stock (‘‘QQQ’’). The text of the the Commission does not edit personal proposed rule change, as amended, is 4 Securities Exchange Act Release No. 49601 identifying information from set forth below. (April 22, 2004), 69 FR 23836 (April 30, 2004) (SR– CBOE–2004–19) (RUT license fee), and Securities submissions. You should submit only Exchange Act Release Act No. 48223 (July 24, information that you wish to make 9 17 CFR 200.30–3(a)(12). 2003), 68 FR 44978 (July 31, 2003) (SR–CBOE– available publicly. 1 15 U.S.C. 78s(b)(1). 2003–26) (DJX license fee). All submissions should refer to File 2 17 CFR 240.19b–4. 5 15 U.S.C. 78f(b). 3 The substance of Amendment Nos. 1 and 2 is 6 15 U.S.C. 78f(b)(4). Number SR–CBOE–2004–76 and should incorporated into this notice. 7 15 U.S.C. 78s(b)(3)(A)(ii). be submitted on or before January 7, 4 15 U.S.C. 78s(b)(3)(A)(iii). 8 17 CFR 240.19b–4(f)(2). 2005. 5 17 CFR 240.19b–4(f)(6).
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Proposed new language is in italics. A. Self-Regulatory Organization’s B. Self-Regulatory Organization’s Proposed deletions are in brackets. Statement of the Purpose of, and Statement on Burden on Competition * * * * * Statutory Basis for, the Proposed Rule The proposed rule change does not Change impose any burden on competition that Rule 700. Days and Hours of Business 1. Purpose is not necessary or appropriate in The Board shall determine the days furtherance of the purposes of the Act. the Exchange shall be open for business The purpose of this proposed rule change is to amend ISE Rule 700 (‘‘Days C. Self-Regulatory Organization’s (referred to as ‘‘business days’’) and the Statement on Comments on the and Hours of Business’’) by adding a hours of such days during which Proposed Rule Change Received From new subsection (b) that will codify ISE’s transactions may be made on the Members, Participants or Others Exchange. No Member shall make any practice of trading options on certain bid, offer, or transaction on the Fund Shares, including the QQQ, until The Exchange has not solicited, and Exchange before or after such hours. 4:15 p.m. (New York Time). The 4:15 does not intend to solicit, comments on p.m. termination coincides with the this proposed rule change. The (a) Except for unusual conditions as trading hours termination time for Exchange has not received any may be determined by the Board, hours options on stock indexes. Recently, the unsolicited written comments from during which transactions in options on Nasdaq Stock Market, Inc. (‘‘Nasdaq’’) members or other interested parties. individual stocks may be made on the announced its intention to transfer the III. Date of Effectiveness of the Exchange shall correspond to the listing of the QQQ from the American normal business days and hours for Proposed Rule Change and Timing for Stock Exchange (‘‘Amex’’) to Nasdaq, Commission Action business set forth in the rules of the effective as of the opening of trading on primary market trading the stocks December 1, 2004. QQQ previously The Exchange has designated the underlying Exchange options; provided, traded on the Amex until 4:15 p.m., but proposed rule change, as amended, as a however, that transactions may be as of December 1, 2004, Nasdaq closes ‘‘non-controversial’’ rule change effected in an options class on the trading in the QQQ at 4 p.m., but will pursuant to Section 19(b)(3)(A)(iii) of Exchange until two (2) minutes after the allow trading in the QQQ to continue in the Act 9 and subparagraph (f)(6) of Rule primary market on which the after hours trading until 8 p.m. ISE 19b–4 thereunder.10 The Exchange underlying stock trades closes for intends to continue to trade options on represents that the foregoing rule trading. the QQQ during its regular trading change: (1) Does not significantly affect (b) Options on Fund Shares, as session until 4:15 p.m., as it does the protection of investors or the public defined in Rule 502(h), may be traded options on certain other Fund Shares interest; (2) does not impose any on the Exchange until 4:15 p.m. each and indexes. significant burden on competition; and (3) by its terms, does not become business day. ISE notes that Amex and the Pacific operative for 30 days after the date of [(b)](c) The Exchange shall not be Exchange, Inc. (‘‘PCX’’) trade options on this filing, or such shorter time as the open for business on the following QQQ until 4:15 p.m. (New York Time) Commission may designate if consistent 6 holidays: New Year’s Day, Martin under their respective rules. The new with the protection of investors and the Luther King, Jr. Day, Presidents’ Day, proposed subsection (b) to ISE Rule 700 public interest. The Exchange has Good Friday, Memorial Day, will codify ISE’s longstanding practice requested that the Commission waive Independence Day, Labor Day, of trading options on QQQ and certain the five-day pre-filing notice Thanksgiving Day or Christmas Day. Fund Shares until 4:15 p.m. The ISE requirement and the 30-day operative When any holiday observed by the submits that this rule change will serve delay period for ‘‘non-controversial’’ Exchange falls on a Saturday, the to avoid any confusion in the proposals and make the proposed rule Exchange will not be open for business marketplace over the trading hours of change, as amended, effective and on the preceding Friday. When any QQQ options in light of Nasdaq’s shift operative upon filing. holiday observed by the Exchange falls of the listing venue of QQQ and to The Commission has determined to on a Sunday, the Exchange will not be codify the trading hours for options on waive the five-day pre-filing notice open for business on the following certain Fund Shares and on QQQ. requirement and the 30-day operative 11 Monday, unless unusual business 2. Statutory Basis delay period. The Commission notes conditions exist at the time. that accelerating the operative date will * * * * * The Exchange believes that the allow the trading hours for options on proposal is consistent with the the QQQ to remain unchanged and II. Self-Regulatory Organization’s requirements of Section 6(b) of the Act,7 provide continuity to the marketplace. Statement of the Purpose of, and in general, and Section 6(b)(5) of the Therefore, the foregoing proposed rule Statutory Basis for, the Proposed Rule Act,8 in particular, in that it is designed change has become immediately Change to prevent fraudulent and manipulative effective and operative upon filing acts and practices, to promote just and pursuant to Section 19(b)(3)(A)(iii) of In its filing with the Commission, ISE 12 equitable principles of trade, to remove the Act and Rule 19b–4(f)(6) included statements concerning the impediments to and perfect the thereunder.13 purpose of, and statutory basis for, the mechanism of a free and open market proposed rule change and discussed any and a national market system, and, in 9 15 U.S.C. 78s(b)(3)(A)(iii). comments it received on the proposed general, to protect investors and the 10 17 CFR 240.19b–4(f)(6). rule change. The text of these statements public interest. 11 For purposes only of accelerating the operative may be examined at the places specified date of this proposal, the Commission has in Item IV below. ISE has prepared considered the proposed rule’s impact on 6 See Commentary .02 to Amex Rule 1 and efficiency, competition, and capital formation. 15 summaries, set forth in Sections A, B, Commentary .02 to PCX Rule 7.1. U.S.C. 78c(f). and C below, of the most significant 7 15 U.S.C. 78f(b). 12 15 U.S.C. 78s(b)(3)(A)(iii). aspects of such statements. 8 15 U.S.C. 78f(b)(5). 13 17 CFR 240.19b–4(f)(6).
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At any time within 60 days of the received will be posted without change; II. Summary of Comments filing of the proposed rule change, the the Commission does not edit personal Commission may summarily abrogate identifying information from The Nasdaq’s Office of General such rule change if it appears to the submissions. You should submit only Counsel received one letter in response Commission that such action is information that you wish to make to an e-mail it sent to listed issuers, necessary or appropriate in the public available publicly. All submissions before the proposal was published in interest, for the protection of investors, should refer to File Number SR–ISE– the Federal Register, notifying listed or otherwise in furtherance of the 2004–39 and should be submitted on or issuers of the planned rule filing and the 5 purposes of the Act.14 before January 7, 2005. potential fee increase. The commenter did not file a comment on the proposal IV. Solicitation of Comments For the Commission, by the Division of with the Commission; however, the Market Regulation, pursuant to delegated Interested persons are invited to authority.15 Nasdaq forwarded the letter to the Commission and the Commission submit written data, views and Margaret H. McFarland, placed the letter in the public file. The arguments concerning the foregoing, Deputy Secretary. including whether the proposed rule commenter opposed the proposed [FR Doc. E4–3702 Filed 12–16–04; 8:45 am] change is consistent with the Act. increase in the annual fee and expressed Comments may be submitted by any of BILLING CODE 8010–01–P concern over the fee for the listing of the following methods: additional shares. In particular, the commenter opined that the fee charged SECURITIES AND EXCHANGE Electronic Comments for listing additional shares unfairly COMMISSION • Use the Commission’s Internet burdens listed issuers who reissue comment form (http://www.sec.gov/ [Release No. 34–50838; File No. SR–NASD– treasury shares as a result of stock rules/sro.shtml); or 2004–128] option exercises and, accordingly, can • Send an e-mail to rule- result in total fees consistent with, or [email protected]. Please include File Self-Regulatory Organizations; more than, the fees charged to listed Number SR–ISE–2004–39 on the subject National Association of Securities issuers with a higher range of total line. Dealers, Inc.; Order Granting Approval shares outstanding. of Proposed Rule Change To Modify Paper Comments the Annual Fee for Certain Issuers III. The Nasdaq’s Response to the • Send paper comments in triplicate Listed on the Nasdaq Stock Market, Comment Inc. to Jonathan G. Katz, Secretary, The Nasdaq acknowledged the Securities and Exchange Commission, December 10, 2004. commenter’s concerns, but explained 450 Fifth Street, NW., Washington, DC that the Nasdaq does not charge the fee 20549–0609. I. Introduction for listing additional shares in All submissions should refer to File On August 25, 2004, the National connection with the reissuance of Number SR–ISE–2004–39. This file Association of Securities Dealers, Inc. treasury shares.6 Further, the Nasdaq number should be included on the (‘‘NASD’’), through its subsidiary, The affirmed that the proposed fee schedule subject line if e-mail is used. To help the Nasdaq Stock Market, Inc. (‘‘Nasdaq’’), does not, by its terms, preference any Commission process and review your filed with the Securities and Exchange class of listed issuers, but rather applies comments more efficiently, please use Commission (‘‘Commission’’), pursuant equally to all similarly situated listed only one method. The Commission will to Section 19(b)(1) of the Securities issuers.7 The Nasdaq also noted that post all comments on the Commission’s Exchange Act of 1934 (‘‘Act’’) 1 and Rule issuers falling into a higher total shares Internet Web site (http://www.sec.gov/ 19b–4 thereunder,2 a proposed rule outstanding category similarly would be rules/sro.shtml). Copies of the change to modify the annual fee for subject to the fee for listing additional submission, all subsequent domestic and foreign issuers (other than shares, which fee would be amendments, all written statements American Depositary Receipts) listed on proportionate to their total shares with respect to the proposed rule the Nasdaq National Market and for all outstanding.8 The Commission believes change that are filed with the issuers listed on The Nasdaq SmallCap that the Nasdaq’s response to the Commission, and all written Market. The proposed rule change was commenter’s concerns is reasonable. communications relating to the published for notice and comment in proposed rule change between the the Federal Register on October 28, IV. Discussion and Commission Commission and any person, other than 2004.3 The Commission received no Findings those that may be withheld from the comments in response to the proposal as The Commission finds that the public in accordance with the published in the Federal Register. The proposed rule change is consistent with provisions of 5 U.S.C. 552, will be Nasdaq Office of General Counsel, the requirements of the Act and the available for inspection and copying in however, received one comment letter rules and regulations thereunder the Commission’s Public Reference before the proposal was published for applicable to a national securities Room, 450 Fifth Street, NW., comment.4 This order approves the Washington, DC 20549. Copies of such proposed rule change as filed. to Nasdaq Office of General Counsel, dated October filing also will be available for 20, 2004. inspection and copying at the principal 15 17 CFR 200.30–3(a)(12). 5 See id. The proposal was published in the office of the Exchange. All comments 1 15 U.S.C. 78s(b)(1). Federal Register on October 28, 2004, eight days 2 CFR 240.19b–4. after the date of Performance Technologies, Inc.’s 14 For purposes of calculating the 60-day period 3 See Securities Exchange Act Release No. 50577 letter to Nasdaq. within which the Commission may summarily (Oct. 21, 2004), 69 FR 62926 (Oct. 28, 2004). 6 Telephone conference between Arnold Golub, abrogate the proposed rule change under Section Footnote number 3 of the release incorrectly Office of General Counsel, Nasdaq, and Richard 19(b)(3)(C) of the Act, the Commission considers identified Mr. Golub; his correct information is: Holley, Attorney, Division of Market Regulation, that period to commence on December 9, 2004, the Arnold Golub, Office of General Counsel, Nasdaq. Commission, on December 3, 2004. date the Exchange filed Amendment No. 2 to the 4 See letter from Dorrance W. Lamb, Chief 7 See id. proposed rule change. See 15 U.S.C. 78s(b)(3)(C). Financial Officer, Performance Technologies, Inc., 8 See id.
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association,9 and, in particular, the effectiveness of the pilot program The Exchange proposes to extend the requirements of Section 15A(b)(5) of the (‘‘Pilot’’) for NYSE Direct+ (‘‘Direct+’’). Pilot for an additional year until Act.10 The Commission believes that the The Pilot was initially approved on a December 23, 2005. Four filings which proposed rule change will result in the one-year basis and subsequently impact Direct+ and that have been equitable allocation of annual fees extended until December 23, 2004. approved by the Commission during the among listed issuers. The Commission current Pilot are now part of the Pilot.6 II. Self-Regulatory Organization’s notes that the Nasdaq plans to use the These filings are set forth below. Statement of the Purpose of, and proposed fee increase to support its (a) A filing which amended NYSE Statutory Basis for, the Proposed Rule ongoing costs of issuer services and to Rule 1000 to provide that Direct+ Change fund future product and service executions would not be available if the investments. In its filing with the Commission, the resulting trade would be more than five Exchange included statements cents away from the last sale.7 The V. Conclusion concerning the purpose of and basis for amendment also provided that during It is therefore ordered, pursuant to the proposed rule change and discussed the process for completing NYSE Rule section 19(b)(2) of the Act,11 that the any comments it received on the 127 transactions, the specialist should proposed rule change (SR–NASD–2004– proposed rule change. The text of these publish a bid and/or offer that is more 128) be, and it hereby is, approved. statements may be examined at the than five cents away from the last For the Commission, by the Division of places specified in Item IV below. The reported transaction price in the subject Market Regulation, pursuant to delegated Exchange has prepared summaries, set security on the Exchange. authority.12 forth in Sections A, B, and C below, of (b) A filing which (i) amended NYSE Margaret H. McFarland, the most significant aspects of such Rule 13 to provide for a one-year pilot Deputy Secretary. statements. program (also expiring on December 23, 2004) to expand Direct+ order size [FR Doc. E4–3706 Filed 12–16–04; 8:45 am] A. Self-Regulatory Organization’s eligibility (for up to 10,000 shares) for BILLING CODE 8010–01–P Statement of the Purpose of, and Exchange-Traded Funds (‘‘ETFs’’) and Statutory Basis for, the Proposed Rule Holding Company Depositary Receipts Change SECURITIES AND EXCHANGE (‘‘HOLDRs’’); (ii) amended NYSE Rule COMMISSION 1. Purpose 1002 to include ETFs and HOLDRs and In light of the fact that the provide that ETFs trade until 4:15 p.m.; [Release No. 34–50828; File No. SR–NYSE– and (iii) amended NYSE Rule 1005 to 2004–66] Commission is still considering the Exchange’s proposed enhancements to reflect that the rule applies to ETFs and 8 Self-Regulatory Organizations; Notice Direct+ (‘‘hybrid market proposal’’),3 the HOLDRs. of Filing and Immediate Effectiveness Exchange seeks to extend the Pilot as it (c) A filing which amended NYSE of Proposed Rule Change by the New currently operates for an additional year Rule 1005 to permit entry of limit orders York Stock Exchange, Inc. To Extend until December 23, 2005. Direct+ was up to 1099 shares within 30 seconds for the Pilot for Its Automatic Execution originally approved as a one-year pilot an account in which the same person Facility for Certain Limit Orders (NYSE ending on December 21, 2001.4 The has an interest, provided that the orders Direct+) Pilot was subsequently extended for are entered from different terminals and three additional one-year periods, and is that the member or member December 9, 2004. currently scheduled to end on December organization responsible for the entry of Pursuant to Section 19(b)(1) of the 23, 2004.5 the orders to the trading floor has Securities Exchange Act of 1934 The Pilot provides for the automatic procedures to monitor compliance with (‘‘Act’’),1 and Rule 19b–4 thereunder,2 execution of limit orders of 1099 shares the separate terminal requirement.9 notice is hereby given that on November or less (‘‘auto ex orders’’) against trading (d) A filing which amended NYSE 22, 2004, the New York Stock Exchange, interest reflected in the Exchange’s Rules 1000 and 1001 in connection with Inc. (‘‘NYSE’’ or ‘‘Exchange’’) filed with published quotation. It is not mandatory the NYSE LiquidityQuoteSM initiative.10 the Securities and Exchange that all limit orders of 1099 shares be In conjunction with autoquoting of bids Commission (‘‘Commission’’) the entered as auto ex orders; rather, the and offers, NYSE Rule 1000 was proposed rule change as described in member organization entering the order, amended to provide that a Direct+ order Items I and II below, which Items have or its customer if enabled by the equal to or greater than the size of the been prepared by the Exchange. The member organization, can choose to published bid/offer would exhaust the Commission is publishing this notice to enter an auto ex order when such entire bid/offer rather than decrease it to solicit comments on the proposed rule member organization (or customer) change from interested persons. believes that the speed and certainty of 6 In addition, SR–NYSE–2003–20 proposed to an execution at the Exchange’s disengage Direct+ in five actively-traded stocks on I. Self-Regulatory Organization’s a pilot basis. However, this pilot expired on June published bid or offer price is in its Statement of the Terms of Substance of 20, 2003 and, therefore, does not impact the Pilot customer’s best interest. as proposed to be extended. See Securities the Proposed Rule Change Exchange Act Release No. 47965 (June 2, 2003), 68 The Exchange proposes to extend 3 See Securities Exchange Act Release Nos. 50173 FR 34691 (June 10, 2003) (SR–NYSE–2003–20). until December 23, 2005 the (August 10, 2004), 69 FR 50407 (August 16, 2004) 7 See Securities Exchange Act Release No. 47463 and 50667 (November 15, 2004), 69 FR 67980 (March 7, 2003), 68 FR 12122 (March 13, 2003) (SR– (November 22, 2004) (SR–NYSE–2004–05). NYSE–2002–44). 9 In approving this proposed rule change, the 4 See Securities Exchange Act Release No. 43767 8 See Securities Exchange Act Release No. 47024 Commission has considered the proposed rule’s (December 22, 2000), 66 FR 834 (January 4, 2001) (December 18, 2002), 67 FR 79217 (December 27, impact on efficiency, competition, and capital (SR–NYSE–00–18). 2002) (SR–NYSE–2002–37). formation. 15 U.S.C. 78c(f). 5 See Securities Exchange Act Release Nos. 45331 9 See Securities Exchange Act Release No. 47353 10 15 U.S.C. 78o-3(b)(5). (January 24, 2002), 67 FR 5024 (February 1, 2002) (February 12, 2003), 68 FR 8318 (February 20, 2003) 11 15 U.S.C. 78s(b)(2). (SR–NYSE–2001–50); 46906 (November 25, 2002), (SR–NYSE–2002–58). 12 17 CFR 200.30–3(a)(12). 67 FR 72260 (December 4, 2002) (SR–NYSE–2002– 10 See Securities Exchange Act Release No. 47614 1 15 U.S.C. 78s(b)(1). 47); and 48772 (November 12, 2003), 68 FR 65756 (April 2, 2003), 68 FR 17140 (April 8, 2003) (SR– 2 17 CFR 240.19b–4. (November 21, 2003) (SR–NYSE–2003–30). NYSE–2002–55).
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100 shares, and NYSE Rule 1001(c) was III. Date of Effectiveness of the including whether the proposed rule deleted.11 Proposed Rule Change and Timing for change is consistent with the Act. The above-mentioned filings became Commission Action Comments may be submitted by any of part of the Direct+ rules and were Because the foregoing proposed rule the following methods: incorporated into the Pilot upon their does not (i) significantly affect the Electronic Comments respective approvals by the protection of investors or the public Commission.12 Therefore, the Exchange interest; (ii) impose any significant • Use the Commission’s Internet proposes that an extension of the Pilot burden on competition; and (iii) become comment form (http://www.sec.gov/ for an additional year would also extend operative for 30 days from the date on rules/sro.shtml); or the above-mentioned filings as part of which it was filed, or such shorter time • the Pilot. Send an e-mail to rule- as the Commission may designate if [email protected]. Please include File However, if the Commission approves consistent with the protection of the hybrid market proposal during the Number SR–NYSE–2004–66 on the investors and the public interest, subject line. extension of the Pilot period (December provided that the self-regulatory 24, 2004 to December 23, 2005), the organization has given the Commission Paper Comments Exchange proposes that the hybrid written notice of its intent to file the • market proposal would supersede this proposed rule change at least five Send paper comments in triplicate filing. business days prior to the date of filing to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 2. Statutory Basis of the proposed rule change or such shorter time as designated by the 450 Fifth Street, NW., Washington, DC The Exchange believes that the Commission, the proposed rule change 20549–0609. proposed rule change is consistent with has become effective pursuant to All submissions should refer to File 13 Section 6(b) of the Act in general, and Section 19(b)(3)(A) of the Act 16 and Number SR–NYSE–2004–66. This file furthers the objectives of Section 6(b)(5) Rule 19b–4(f)(6) thereunder.17 At any number should be included on the 14 of the Act in particular, because it is time within 60 days of the filing of such subject line if e-mail is used. To help the designed to promote just and equitable proposed rule change, the Commission Commission process and review your principles of trade, to remove may summarily abrogate such rule comments more efficiently, please use impediments to and perfect the change if it appears to the Commission only one method. The Commission will mechanism of a free and open market that such action is necessary or post all comments on the Commission’s and a national market system, and, in appropriate in the public interest, for Internet Web site (http://www.sec.gov/ general, to protect investors and the the protection of investors, or otherwise rules/sro.shtml). Copies of the public interest. The Exchange also in furtherance of the purposes of the submission, all subsequent believes that the proposed rule change Act.18 amendments, all written statements is designed to support the principles of The Exchange requests that the with respect to the proposed rule 15 Section 11A(a)(1) of the Act in that it Commission waive the five business change that are filed with the seeks to assure economically efficient days pre-filing requirement and the 30- Commission, and all written execution of securities transactions, day operative delay under Rule 19b– communications relating to the 19 makes it practicable for brokers to 4(f)(6)(iii). The Exchange believes that proposed rule change between the execute investors’ orders in the best the continuation of the Pilot is in the Commission and any person, other than market, and provides an opportunity for public interest as it will avoid those that may be withheld from the investors’ orders to be executed without inconvenience and interruption to the public in accordance with the the participation of a dealer. public. provisions of 5 U.S.C. 552, will be The Commission believes that waiver available for inspection and copying in B. Self-Regulatory Organization’s of the 30 days operative delay is the Commission’s Public Reference Statement on Burden on Competition consistent with the protection of Room, 450 Fifth Street, NW., investors and the public interest,20 The Exchange does not believe that Washington, DC 20549. Copies of such because it will allow the Exchange to the proposed rule change will impose filing also will be available for continue, without interruption, the any burden on competition that is not inspection and copying at the principal existing operation of its Pilot for an necessary or appropriate in furtherance office of the NYSE. All comments additional year, while the Commission of the purposes of the Act. received will be posted without change; considers the hybrid market proposal. the Commission does not edit personal C. Self-Regulatory Organization’s Accordingly, the Commission identifying information from Statement on Comments on the designates that the proposal shall Proposed Rule Change Received From become operative as of the date of this submissions. You should submit only Members, Participants or Others notice. information that you wish to make available publicly. All submissions The Exchange has neither solicited IV. Solicitation of Comments should refer to File Number SR–NYSE– nor received written comments on the 2004–66 and should be submitted on or proposed rule change. Interested persons are invited to submit written data, views and before January 7, 2005. 11 NYSE Rule 1001(c) formerly provided that if arguments concerning the foregoing, For the Commission, by the Division of executions of auto ex orders have traded with all Market Regulation, pursuant to delegated trading interest reflected in the Exchange’s 16 15 U.S.C. 78s(b)(3)(A). authority.21 published bid or offer, the Exchange will 17 17 CFR 240.19b–4(f)(6). Margaret H. McFarland, disseminate a bid or offer at that price of 100 shares 18 15 U.S.C. 78s(b)(3)(C). until the specialist requotes that market. 19 17 CFR 240.19b–4(f)(6)(iii). Deputy Secretary. 12 See Amendment No. 1 to SR–NYSE–2002–47, 20 For purposes only of accelerating the operative [FR Doc. E4–3704 Filed 12–16–04; 8:45 am] supra note 5. date of this proposal, the Commission has BILLING CODE 8010–01–P 13 15 U.S.C. 78f(b). considered the proposed rule’s impact on 14 15 U.S.C. 78f(b)(5). efficiency, competition, and capital formation. 15 15 15 U.S.C. 78k–1(a)(1). U.S.C. 78c(f). 21 17 CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE prepared by the Exchange. The (h) Minor Rule Plan: Options Floor COMMISSION Commission is publishing this notice to Decorum and Minor Trading Rule solicit comments on the proposed rule Violations. [Release No. 34–50830; File No. SR–PCX– 2004–58] change from interested persons. (1)–(44)—No change. I. Self-Regulatory Organization’s (45) Failure to maintain adequate Self-Regulatory Organizations; Notice Statement of the Terms of Substance of procedures and controls to monitor and of Filing of Proposed Rule Change by the Proposed Rule Change supervise the entry of electronic orders the Pacific Exchange, Inc. Relating to by Users to prevent the prohibited The Exchange is proposing to amend the Exchange’s Rules Under the Minor practices set forth in Rules 6.87(d) and the PCX Minor Rule Plan (‘‘MRP’’) and Rule Plan and Recommended Fine 6.90(e). (Rules 6.87(c)(4) and 6.90(d)(3)). Schedule Recommended Fine Schedule (‘‘RFS’’). The text of the proposed rule change is (i) No change. December 9, 2004. below. Proposed new language is in (j) No change. Pursuant to Section 19(b)(1) of the italics; proposed deletions are in Rule 10.12(k) Minor Rule Plan: Securities Exchange Act of 1934 brackets.3 Recommended Fine Schedule 1 1 2 (‘‘Act’’) and Rule 19b–4 thereunder, * * * * * notice is hereby given that on December (i) Options Floor Decorum and Minor 2, 2004, the Pacific Exchange, Inc. Rules of the Pacific Exchange, Inc. Trading Rule Violations. 1.–44.—No change. (‘‘PCX’’ or ‘‘Exchange’’), through its Rule 10 wholly owned subsidiary PCX Equities, 45. Failure to maintain adequate Inc. (‘‘PCXE’’), filed with the Securities Disciplinary Proceedings and Appeals procedures and controls to monitor and and Exchange Commission * * * * * supervise the entry of electronic orders (‘‘Commission’’ or ‘‘SEC’’) the proposed by Users to prevent the prohibited rule change as described in Items I, II Minor Rule Plan practices set forth in Rules 6.87(d) and and III below, which Items have been Rule 10.12(a)–(g)—No change. 6.90(e). (Rules 6.87(c)(4) and 6.90(d)(3)).
1st Violation 2nd Violation 3rd Violation
$1,000.00 ...... Full Disciplinary Proceeding ...... Full Disciplinary Proceeding.
* * * * * which require Order Entry Firms to appropriate to the extent that it maintain adequate procedures and addresses an Order Entry Firm’s II. Self-Regulatory Organization’s controls to monitor and supervise the repeated failure to maintain proper Statement of the Purpose of, and entry of electronic orders.5 Currently, procedures given that the Order Entry Statutory Basis for, the Proposed Rule the MRP sets forth penalties and Firm has already been charged with an Change sanctions for improperly dividing up an MRP violation. Thus, the Exchange In its filing with the Commission, the order to make its parts eligible for believes that an Order Entry Firm’s Exchange included statements execution on Auto-Ex or PCX Plus.6 The repeated failure to have proper concerning the purpose of and basis for Exchange believes that the proposed procedures in place, which are essential the proposed rule change and discussed amendments to its MRP and RFS are for the monitoring and supervising of any comments it received on the appropriate to include as part of the the entry of electronic orders, warrants proposed rule change. The text of these MRP and RFS since failure to monitor a formal disciplinary proceeding. statements may be examined at the 7 Users regarding the entry of electronic The Exchange believes that the places specified in Item IV below. The orders corresponds to the violation of proposed rule change will strengthen Exchange has prepared summaries, set improperly dividing up an order to the ability of the Exchange to carry out forth in sections A, B and C below, of make its parts eligible for execution on its oversight responsibilities as a self- the most significant aspects of such Auto-Ex or PCX Plus. regulatory organization (‘‘SRO’’). The statements. The Exchange proposes a fine of proposed rule change should also aid A. Self-Regulatory Organization’s $1,000 for the first violation for failure the Exchange in carrying out its Statement of the Purpose of, and to maintain adequate procedures and surveillance and enforcement functions. Statutory Basis for, the Proposed Rule controls to monitor and supervise the The Exchange does not minimize the Change entry of electronic orders pursuant to importance of compliance with these PCX Rules 6.87(c)(4) and 6.90(d)(3). In rules, and all other rules subject to the 1. Purpose lieu of proposing fines for a second and imposition of fines under the The Exchange proposes to amend third violation, the Exchange proposes Exchange’s MRP. The Exchange relies PCX’s MRP and RFS to add provisions to treat subsequent violations as a on its MRP as a tool to address for violations by an Order Entry Firm 4 formal disciplinary matter. A formal enumerated violations to provide the of PCX Rules 6.87(c)(4) and 6.90(d)(3), disciplinary proceeding would be Exchange with greater flexibility to
1 15 U.S.C. 78s(b)(1). Attorney, Division of Market Regulation, monitor and supervise the entry of electronic orders 2 17 CFR 240.19b–4. Commission, on December 9, 2004. by all Users. Order Entry Firms must monitor and 3 PCX noted that there was a typographical error 1 Fines for multiple violations of Options Floor supervise the entry of orders by Users to prevent appearing in the proposed rule change. Note 1 Decorum and Minor Trading Rules are calculated prohibited practices set forth in PCX Rule 6.87(d). should tie to PCX Rule 10.12(i) instead of Rule on a running two-year basis. PCX Rule 6.90(d)(3) sets forth the equivalent 10.12(k). PCX agrees to correct this error in an 4 requirement for Order Entry Firms with respect to amendment to the rule filing to be filed prior to the See PCX Rule 6.87(a)(3). 5 PCX Plus. expiration of the public comment period. PCX Rule 6.87(c)(4) requires Order Entry Firms Telephone conversation between Tania J.C. to maintain adequate procedures and controls that 6 See PCX Rules 10.12(h)(33) and 10.12(i)(33). Blanford, Staff Attorney, PCX, and Jennifer C. Dodd, will permit the Order Entry Firm to effectively 7 See PCX Rule 6.87(a)(2).
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address violations that may not require IV. Solicitation of Comments For the Commission, by the Division of formal disciplinary proceedings. Under Market Regulation, pursuant to delegated the proposed rules, the Enforcement Interested persons are invited to authority.12 Department would continue to exercise submit written data, views and Margaret H. McFarland, its discretion under Rule 10.12(f) and arguments concerning the foregoing, Deputy Secretary. pursue certain cases as a formal including whether the proposed rule [FR Doc. E4–3705 Filed 12–16–04; 8:45 am] disciplinary matter, and not within the change is consistent with the Act. BILLING CODE 8010–01–P MRP process, to the extent that the facts Comments may be submitted by any of or circumstances warrant such action. the following methods: SECURITIES AND EXCHANGE 2. Basis Electronic Comments COMMISSION The Exchange believes that the • proposal is consistent with Section 6(b) Use the Commission’s Internet 8 comment form (http://www.sec.gov/ [Release No. 34–50833; File No. SR–Phlx– of the Act, in general, and Section 2004–86] 6(b)(5) of the Act,9 in particular, in that rules/sro.shtml); or it will promote just and equitable • Send an e-mail to rules- Self-Regulatory Organizations; Notice principles of trade; facilitate [email protected]. Please include Filed of Filing and Immediate Effectiveness transactions in securities, remove No. SR–PCX–2004–58 on the subject of Proposed Rule Change by the impediments to and perfect the line. Philadelphia Stock Exchange, Inc. mechanisms of a free and open market Relating to the Definition of an Paper Comments and a national market system; and Exchange-Traded Fund Share protect investors and the public interest. • Send paper comments in triplicate The proposal is also consistent with December 10, 2004. to Jonathon G. Katz, Secretary, Sections 6(b)(6) 10 and 6(b)(7),11 which Pursuant to Section 19(b)(1) of the Securities and Exchange Commission, require that members and persons Securities Exchange Act of 1934 associated with members are 450 Fifth Street, NW., Washington, DC (‘‘Act’’) 1, and Rule 19b–4 thereunder,2 appropriately disciplined for violations 20549–0609. notice is hereby given that on December of Exchange rules and are provided a All submissions should refer to File 1, 2004, the Philadelphia Stock fair procedure for disciplinary No. SR–PCX–2004–58. This file number Exchange, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) procedures. should be included on the subject line filed with the Securities and Exchange B. Self-Regulatory Organization’s if e-mail is used. To help the Commission (‘‘Commission’’) the Statement on Burden on Competition Commission process and review your proposed rule change as described in comments more efficiently, please use Items I and II, below, which Items have The Exchange does not believe that only one method. The Commission will been prepared by the Phlx. The the proposed rule change will impose post all comments on the Commission’s Exchange filed the proposal as a ‘‘non- any burden on competition that is not controversial’’ proposed rule change necessary or appropriate in furtherance Internet Web site (http://www.sec.gov/ rules/sro.shtml). Copies of the pursuant to Section 19(b)(3)(A)(iii) of of the purposes of the Act. 3 submission, all subsequent the Act and Rule 19b–4(f)(6) 4 C. Self-Regulatory Organization’s amendments, all written statements thereunder. The Commission is Statement on Comments on the with respect to the proposed rule publishing this notice to solicit Proposed Rule Change Received from change that are filed with the comments on the proposed rule change from interested persons. Members, Participants, or Others Commission, and all written Written comments on the proposed communications relating to the I. Self-Regulatory Organization’s rule change were neither solicited nor proposed rule change between the Statement of the Terms of Substance of received. Commission and any person, other than the Proposed Rule Change III. Date of Effectiveness of the those that may be withheld from the The Exchange proposes to amend Proposed Rule Change and Timing for public in accordance with the Phlx Rule 1000(b)(42) to include the Commission Action provisions of 5 U.S.C. 552, will be Nasdaq-100 Index Tracking Stock 5 in its Within 35 days of the date of available for inspection and copying in definition of ‘‘Exchange–Traded Fund publication of this notice in the Federal the Commission’s Public Reference Register or within such longer period (i) Room, 450 Fifth Street, NW., 12 17 CFR 200.30–3(a)(12). as the Commission may designate up to Washington, DC 20549. Copies of such 1 15 U.S.C. 78s(b)(1). 90 days of such date if it finds such filing will also be available for 2 17 CFR 240.19b–4. inspection and copying at the principal 3 15 U.S.C. 78s(b)(3)(A)(iii). longer period to be appropriate and 4 publishes its reasons for so finding or office of the PCX. All comments 17 CFR 240.19b–4(f)(6). 5 The Nasdaq-100, Nasdaq-100 Index, (ii) as to which the self-regulatory received will be posted without change; Nasdaq, The Nasdaq Stock Market, Nasdaq–100 organization consents, the Commission the Commission does not edit personal SharesSM, Nasdaq-100 TrustSM, Nasdaq-100 Index will: identifying information from Tracking StockSM, and QQQSM are trademarks or (A) By order approve such proposed service marks of The Nasdaq Stock Market, Inc. submissions. You should submit only (‘‘Nasdaq’’) and have been licensed for use for rule change, or information that you wish to make certain purposes by the Exchange pursuant to a (B) institute proceedings to determine available publicly. All submissions License Agreement with Nasdaq. The Nasdaq-100 whether the proposed rule change should refer to File No. SR–PCX–2004– Index (‘‘Index’’) is determined, composed, and should be disapproved. calculated by Nasdaq without regard to Phlx, the 58 and should be submitted on or before Nasdaq-100 TrustSM, or the beneficial owners of Nasdaq-100 SharesSM. Nasdaq has complete control 8 January 7, 2005. 15 U.S.C. 78f(b). and sole discretion in determining, comprising, or 9 15 U.S.C. 78f(b)(5). calculating the Index or in modifying in any way 10 15 U.S.C. 78f(b)(6). its method for determining, comprising, or 11 15 U.S.C. 78f(b)(7). calculating the Index in the future.
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Share.’’ The text of the proposed rule The trading session for most equity time as the Commission may designate change is set forth below. options ends at 4:02 p.m. ET. However, if consistent with the protection of Proposed new language is in italics. pursuant to Exchange Rule 101, options investors and the public interest. The * * * * * overlying indexes and ETFs (such as Exchange has requested that the QQQ) trade on the Phlx until 4:15 p.m. Commission waive the five-day pre- Applicability, Definitions and ET. Because QQQ is no longer included filing notice requirement and the 30-day References in the definition of an ETF, it would not operative delay period for ‘‘non- Rule 1000. (a) No change. be eligible for trading past 4:02 p.m. ET controversial’’ proposals and make the (b) 1.–41. No change. under current Exchange rules. proposed rule change effective and 42. Exchange-Traded Fund Share— In order to preserve the Exchange’s operative upon filing. For purposes of these Rules, the term ability to trade options overlying QQQ The Commission has determined to Exchange-Traded Fund Share shall until 4:15 p.m. ET, the proposed rule waive the five-day pre-filing notice include the Nasdaq-100 Index Tracking change would specifically include requirement and the 30-day operative Stock and Exchange-listed securities reference to the Nasdaq-100 Index delay period.10 The Commission notes representing interests in open end unit Tracking Stock in the definition of an that accelerating the operative date will investment trusts or open-end ETF. allow the trading hours for options management investment companies that overlying the QQQ to remain unchanged 2. Statutory Basis hold securities based on an index or a and provide continuity to the portfolio of securities. The Exchange believes that the marketplace. Therefore, the foregoing (c)–(d) No change. proposal is consistent with the rule change has become immediately * * * * * requirements of Section 6(b) of the Act,6 effective and operative upon filing in general, and Section 6(b)(5) of the pursuant to Section 19(b)(3)(A)(iii) of II. Self-Regulatory Organization’s Act,7 in particular, in that it is designed the Act 11 and Rule 19b–4(f)(6) Statement of the Purpose of, and to prevent fraudulent and manipulative thereunder.12 Statutory Basis for, the Proposed Rule acts and practices, to promote just and At any time within 60 days of the Change equitable principles of trade, to remove filing of the proposed rule change, the In its filing with the Commission, the impediments to and perfect the Commission may summarily abrogate Phlx included statements concerning mechanism of a free and open market such rule change if it appears to the the purpose of, and statutory basis for, and a national market system, and, in Commission that such action is the proposed rule change and discussed general, to protect investors and the necessary or appropriate in the public any comments it received on the public interest. interest, for the protection of investors, proposed rule change. The text of these or otherwise in furtherance of the B. Self-Regulatory Organization’s statements may be examined at the purposes of the Act.13 Statement on Burden on Competition places specified in item IV below. The IV. Solicitation of Comments Phlx has prepared summaries, set forth The Exchange does not believe that in sections A, B, and C below, of the the proposed rule change will impose Interested persons are invited to most significant aspects of such any inappropriate burden on submit written data, views and statements. competition not necessary or arguments concerning the foregoing, appropriate in furtherance of the including whether the proposed rule A. Self-Regulatory Organization’s purposes of the Act. change is consistent with the Act. Statement of the Purpose of, and Comments may be submitted by any of Statutory Basis for, the Proposed Rule C. Self-Regulatory Organization’s the following methods: Change Statement on Comments on the Proposed Rule Change Received From Electronic Comments 1. Purpose Members, Participants, or Others • Use the Commission’s Internet The Exchange proposes to amend the No written comments were either comment form (http://www.sec.gov/ definition of an Exchange Traded Fund solicited or received. rules/sro.shtml); or Share (‘‘ETF’’) to include the Nasdaq- • Send an e-mail to rule- 100 Index Tracking Stock (‘‘QQQ’’) in III. Date of Effectiveness of the [email protected]. Please include File order to preserve the Exchange’s ability Proposed Rule Change and Timing for Number SR–Phlx–2004–86 on the to trade options overlying QQQ until Commission Action subject line. 4:15 p.m. ET and to be clear that The Exchange has designated the Paper Comments throughout the Exchange’s options proposed rule change as a ‘‘non- rules, QQQ continues to be, by controversial’’ rule change pursuant to • Send paper comments in triplicate definition, an ETF. Section 19(b)(3)(A)(iii) of the Act 8 and to Jonathan G. Katz, Secretary, As of December 1, 2004, the QQQ has subparagraph (f)(6) of Rule 19b–4 Securities and Exchange Commission, been listed and has begun trading on the thereunder.9 The Exchange represents 450 Fifth Street, NW., Washington, DC Nasdaq under the new symbol QQQQ. that the foregoing rule change: (1) Does 20549–0609. Under the Exchange’s current rule, not significantly affect the protection of All submissions should refer to File because Nasdaq is not a national investors or the public interest; (2) does Number SR–Phlx–2004–86. This file securities exchange as defined under the not impose any significant burden on number should be included on the Act, QQQ does not qualify as an ETF, competition; and (3) by its terms, does currently defined in Exchange Rule not become operative for 30 days after 10 For purposes only of accelerating the operative date of this proposal, the Commission has 1000(b)(42) as an ‘‘exchange-listed’’ the date of this filing, or such shorter security. The fact that QQQ is no longer considered the proposed rule’s impact on efficiency, competition, and capital formation. 15 an ‘‘exchange-listed’’ security (and 6 15 U.S.C. 78f(b). U.S.C. 78c(f). therefore under the current rule is not 7 15 U.S.C. 78f(b)(5). 11 15 U.S.C. 78s(b)(3)(A)(iii). by definition an ETF) affects the hours 8 15 U.S.C. 78s(b)(3)(A)(iii). 12 17 CFR 240.19b–4(f)(6). of trading in options overlying QQQ. 9 17 CFR 240.19b–4(f)(6). 13 15 U.S.C. 78s(b)(3)(C).
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subject line if e-mail is used. To help the waive the options specialist shortfall fee For the Commission, by the Division of Commission process and review your for the period May 2004 through August Market Regulation, pursuant to delegated comments more efficiently, please use 2004 for one specialist unit that did not authority.9 only one method. The Commission will have a specialized quoted feed in place Margaret H. McFarland, post all comments on the Commission’s that could price an option accurately for Deputy Secretary. Internet Web site (http://www.sec.gov/ any option where the primary volume in [FR Doc. E4–3708 Filed 12–16–04; 8:45 am] rules/sro.shtml). Copies of the the underlying security shifted to BILLING CODE 8010–01–P submission, all subsequent another market. The proposed rule amendments, all written statements change was published for comment in with respect to the proposed rule the Federal Register on November 1, SECURITIES AND EXCHANGE change that are filed with the 2004.3 The Commission received no COMMISSION Commission, and all written communications relating to the comments on the proposal. This order proposed rule change between the approves the proposed rule change. [Release No. 34–50836; File No. SR–Phlx– 2004–70] Commission and any person, other than The Commission finds that the those that may be withheld from the proposed rule change is consistent with Self-Regulatory Organizations; public in accordance with the the requirements of the Act and the Philadelphia Stock Exchange, Inc.; provisions of 5 U.S.C. 552, will be rules and regulations thereunder Notice of Filing and Immediate available for inspection and copying in applicable to a national securities Effectiveness of Proposed Rule the Commission’s Public Reference exchange 4 and, in particular, the Change and Amendment No. 1 Thereto Room, 450 Fifth Street, NW., requirements of section 6 of the Act 5 To Impose New License Fees and To Washington, DC 20549. Copies of such and the rules and regulations Modify the Calculation of the Firm- filing also will be available for thereunder. The Commission finds Related Equity Option and Index inspection and copying at the principal specifically that the proposed rule Option Fee Cap office of the Exchange. All comments change is consistent with section 6(b)(4) received will be posted without change; of the Act,6 which requires that the rules December 10, 2004. the Commission does not edit personal identifying information from of the exchange provide for the Pursuant to Section 19(b)(1) of the equitable allocation of reasonable dues, Securities Exchange Act of 1934 submissions. You should submit only 1 2 information that you wish to make fees, and other charges among its (‘‘Act’’), and Rule 19b–4 thereunder, available publicly. All submissions members and issuers and other persons notice is hereby given that on November should refer to File Number SR–Phlx– using its facilities. The Commission 1, 2004, the Philadelphia Stock 2004–86 and should be submitted on or believes that failure to grant the Exchange, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) before January 7, 2005. proposed waiver would result in an filed with the Securities and Exchange inequitable application of the Commission (‘‘Commission’’) the For the Commission, by the Division of proposed rule change as described in Market Regulation, pursuant to delegated Exchange’s options specialist shortfall authority.14 fee for one particular specialist that, Items I, II and III below, which Items have been prepared by the Exchange. Margaret H. McFarland, because of a unique situation, did not have a specialized quote feed in place On December 9, 2004, Phlx filed Deputy Secretary. Amendment 1 to the proposed rule for the period from May 1, 2004 through [FR Doc. E4–3707 Filed 12–16–04; 8:45 am] change.3 Phlx filed this proposal August 31, 2004. The Commission’s BILLING CODE 8010–01–P pursuant to Section 19(b)(3)(A)(ii) 4 of decision to approve this waiver from the the Act and Rule 19b–4(f)(2) 5 Phlx specialist shortfall fee is limited in thereunder as a proposal establishing or SECURITIES AND EXCHANGE scope to this particular specialist at this changing a due, fee, or other charge COMMISSION 7 time. imposed by the self-regulatory [Release No. 34–50832; File No. SR–Phlx– It is therefore ordered, pursuant to organization, which renders the 2004–62] section 19(b)(2) of the Act 8, that the proposal effective upon filing with the proposed rule change (SR–Phlx–2004– Commission. The Commission is Self–Regulatory Organizations; 62) be, and it hereby is, approved. publishing this notice to solicit Philadelphia Stock Exchange, Inc.; comments on the proposed rule change, Order Granting Approval to Proposed as amended, from interested persons. Rule Change To Waive the Options 3 See Securities Exchange Act Release No. 50591 (October 26, 2004), 69 FR 63427. Specialist Shortfall Fee for One 1 Specialist Unit That Did Not Have a 4 In approving this proposed rule change, the 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. Specialized Quote Feed in Place Commission has considered the proposed rule’s impact on efficiency, competition, and capital 3 In Amendment No. 1, the Phlx made minor formation. 15 U.S.C. 78c(f). technical changes; clarified the calculation of the December 9, 2004. $50,000 cap (described below), specifically as it 5 15 U.S.C. 78f. On September 23, 2004, the relates to the firm-related equity option and index Philadelphia Stock Exchange, Inc. 6 15 U.S.C. 78f(b)(4). option comparison and transaction charges for (‘‘Phlx’’ or ‘‘Exchange’’) filed with the 7 The waiver of the options specialist shortfall fee products without license fees and with license fees; Securities and Exchange Commission in this instance is fact-specific. Future requests for and further clarified that applicable firm-related similar waivers, should any arise, must be filed for charges for the QCX, QCE, and FXI will not be (‘‘Commission’’), pursuant to section notice and comment pursuant to Section 19(b) of counted towards the $50,000 cap. For purpose of 19(b)(1) of the Securities Exchange Act the Act. 15 U.S.C. 78s(b). See also, March 27, 2003 calculating the 60-day period within which the 1 Commission may summarily abrogate the proposed of 1934 (‘‘Act’’) and Rule 19b–4 letter from Annette L. Nazareth, Director, Division 2 rule change under Section 19(b)(3)(C) of the Act, the thereunder, a proposed rule change to of Market Regulation, Commission, to T. Grant Commission considers that period to commence on Callery, Executive Vice President and General December 9, 2004, the date that the Phlx filed 14 17 CFR 200.30–3(a)(12). Counsel, National Association of Securities Dealers. Amendment No. 1. 1 15 U.S.C. 78s(b)(1). 8 15 U.S.C. 78s(b)(2). 4 15 U.S.C. 78s(b)(3)(A)(ii). 2 17 CFR 240.19b–4. 9 17 CFR 200.30–3(a)(12). 5 17 CFR 240.19b–4(f)(2).
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I. Self-Regulatory Organization’s equity option and index option the following products for equity option Statement of the Terms of Substance of comparison and transaction charges firm transactions, which will be the Proposed Rule Change combined. Specifically, such ‘‘firm- imposed after the $50,000 cap is The Phlx proposes to adopt various related’’ charges include equity option reached: firm/proprietary comparison charges, license fees to be assessed per contract License fee side for equity option ‘‘firm’’ equity option firm/proprietary transaction charges, equity option firm/ Product per contract transactions (comprised of equity option side proprietary facilitation transaction firm/proprietary comparison charges, index option firm (proprietary transactions, equity option firm/ Russell 1000 Growth iShares and customer executions) comparison proprietary transactions and firm/ (‘‘IWF’’) ...... $0.10 charges, index option firm/proprietary Russell 2000 iShares (‘‘IWM’’) 0.10 proprietary facilitation transactions). transaction charges, and index option Russell 2000 Value iShares These license fees will be imposed after firm/proprietary facilitation transaction (‘‘IWN’’) ...... 0.10 the Exchange’s $50,000 ‘‘firm-related’’ charges (collectively ‘‘firm-related Russell 2000 Growth iShares equity option and index option charges’’).7 Thus, such firm-related (‘‘IWO’’) ...... 0.10 comparison and transaction fee cap, Russell Midcap Growth charges for equity options and index described more fully below, is reached. iShares (‘‘IWP’’) ...... 0.10 options, in the aggregate for one billing Russell Midcap Value iShares In addition, the Exchange proposes to month, may not exceed $50,000 per impose the normal (not fixed) firm- (‘‘IWS’’) ...... 0.10 month per member organization. NYSE Composite Index related equity option and index option The Exchange also imposes a license (‘‘NYC’’) ...... 0.10 comparison and transaction fees, if fee of $0.10 per contract side for equity NYSE U.S. 100 Index (‘‘NY’’) 0.10 applicable, for certain options, which option ‘‘firm’’ transactions on options would not be subject to the $50,000 cap. on Nasdaq-100 Index Tracking Thus, when a member organization The Exchange also proposes to make a Stock sm 8 traded under the symbol QQQ exceeds the $50,000 cap, the member minor change to its Summary of Equity (‘‘QQQ’’) after the $50,000 cap, as organization will be charged $50,000 Option Charges fee schedule. described above, is reached. Therefore, plus any applicable license fees listed The text of the proposed rule change when a member organization exceeds above (as well as QQQ license fees) for is available at Phlx and at the the $50,000 cap (comprised of combined any trades over those trades that were Commission. firm-related charges), the member included in reaching the $50,000 cap.9 II. Self-Regulatory Organization’s organization is charged $50,000, plus In addition, the Exchange proposes to impose the normal (not fixed) firm- Statement of the Purpose of, and the QQQ license fee of $0.10 per related charges for the following three Statutory Basis for, the Proposed Rule contract side for any QQQ trades (if any) options: Full-size index options Change over those that were included in reaching the $50,000 cap. In other (‘‘QCX’’) and Mini index options In its filing with the Commission, the words, the $0.10 license fee is imposed (‘‘QCE’’) on the Nasdaq Composite Phlx included statements concerning in addition to the $50,000 cap, if the cap Index, Inc. 10 and options listed on the the purpose of and basis for its proposal is reached, on firm-related transactions. iShares FTSE/Xinhua China 25 Index and discussed any comments it received Fund (‘‘FXI Options’’),11 an exchange- on the proposal. The text of these Proposed Changes to the $50,000 Firm traded fund. Thus, a member statements may be examined at the Related Equity Option and Index Option organization will be charged the places specified in Item IV below. The Cap Proposed Fixed Fee Program applicable firm-related charges for the Phlx has prepared summaries, set forth The Exchange proposes to adopt the QCX, QCE or FXI, regardless of whether in Sections A, B, and C below, of the specific license fees per contract side for the $50,000 cap described above is most significant aspects of such reached, and these charges will not be statements. Exchange Act Release No. 43558 (November 14, counted towards the $50,000 cap. 2000), 65 FR 69984 (November 21, 2000) (SR–Phlx– The fees set forth in this proposal are A. Self-Regulatory Organization’s 00–85). scheduled to become effective for 7 Statement of the Purpose of, and On October 28, 2004, the Exchange submitted a transactions settling on or after Statutory Basis for, the Proposed Rule proposed rule change to the Securities and Exchange Commission (‘‘Commission’’) to delineate November 1, 2004. Change two separate ‘‘firm’’ charges on the Summary of The purpose of assessing the various 1. Purpose Index Option and FXI Option Charges fee schedule: license fees per contract side after firm/proprietary and firm/proprietary facilitation, to Current Fee Structure be more consistent with the reference to the firm transaction charges on the Exchange’s Summary of 9 Consistent with current practice, when Currently, the Exchange imposes a Equity Option Charges. See Securities Exchange Act calculating the $50,000 cap, the Exchange first Release No. 50679 (November 16, 2004), 69 FR calculates all equity option and index option cap of $50,000 per member transaction and comparison charges for products organization 6 on all ‘‘firm-related’’ 68208 (November 23, 2004) (SR–Phlx–2004–69). 8 The Nasdaq-100 , Nasdaq-100 Index , without license fees and then equity option Nasdaq , The Nasdaq Stock Market , Nasdaq-100 transaction and comparison charges for products 6 The firm/proprietary comparison or transaction Shares SM, Nasdaq-100 Trust SM, Nasdaq-100 Index with license fees (i.e., QQQ license fees) that are charge applies to member organizations for orders Tracking Stock SM, and QQQ SM are trademarks or assessed by the Exchange after the $50,000 cap is for the proprietary account of any member or non- service marks of The Nasdaq Stock Market, Inc. reached. See Securities Exchange Act Release No. member broker-dealer that derives more than 35% (‘‘Nasdaq’’) and have been licensed for use for 48459 (September 8, 2003), 68 FR 54034 (September of its annual, gross revenues from commissions and certain purposes by the Phlx pursuant to a License 15, 2003) (SR–Phlx–2003–61, Exhibit 3). 10 principal transactions with customers. Member Agreement with Nasdaq. The Nasdaq-100 Index The Nasdaq Composite Index is a registered organizations will be required to verify this amount (the ‘‘Index’’) is determined, composed, and trademark of The Nasdaq Stock Market, Inc., and is to the Exchange by certifying that they have reached calculated by Nasdaq without regard to the licensed for use by Phlx. this threshold by submitting a copy of their annual Licensee, the Nasdaq-100 Trust SM, or the beneficial 11 The Exchange began listing FXI Options, a report, which was prepared in accordance with owners of Nasdaq-100 Shares SM. Nasdaq has product that is an equity option, on October 19, Generally Accepted Accounting Principles complete control and sole discretion in 2004, but are assessed fees pursuant to the (‘‘GAAP’’). In the event that a member organization determining, comprising, or calculating the Index or Summary of Index Option and FXI Options has not been in business for one year, the most in modifying in any way its method for Charges. See Securities Exchange Act Release No. recent quarterly reports, prepared in accordance determining, comprising, or calculating the Index in 50676 (November 16, 2004), 69 FR 38206 with GAAP, will be accepted. See Securities the future. (November 23, 2004) (SR–Phlx–2004–67).
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reaching the $50,000 cap as described in proposed rule change, the Commission be submitted on or before January 7, this proposal is to help defray licensing may summarily abrogate such rule 2005. costs associated with the trading of change if it appears to the Commission For the Commission, by the Division of these products, while still capping that such action is necessary or Market Regulation, pursuant to delegated member organizations’ fees enough to appropriate in the public interest, for authority.17 attract volume from other exchanges. the protection of investors, or otherwise Margaret H. McFarland, The purpose of allowing the QCE, QCX in furtherance of the purposes of the Deputy Secretary. 16 and FXI products to be charged the Act. [FR Doc. E4–3709 Filed 12–16–04; 8:45 am] normal (not fixed) firm-related charges IV. Solicitation of Comments BILLING CODE 8010–01–P is to generate revenue (that was previously capped) because these are Interested persons are invited to submit written data, views, and not the products in which the Exchange SMALL BUSINESS ADMINISTRATION is seeking to attract firm-related volume arguments concerning the foregoing, from other exchanges. including whether the proposed rule [Declaration of Disaster #10003] In addition to the foregoing, the change, as amended, is consistent with Exchange proposes to make a minor the Act. Comments may be submitted by State of North Carolina (NC–00001) change to its Summary of Equity Option any of the following methods: Pender County and the contiguous Charges to delete the word Electronic Comments: counties of Bladen, Brunswick, ‘‘transaction’’ from the reference to the • Columbus, Duplin, New Hanover, firm/proprietary facilitation option Use the Commission’s Internet comment form (http://www.sec.gov/ Onslow, and Sampson in the State of transaction charge and to delete North Carolina constitute a disaster area reference to the QQQ license fees of rules/sro.shtml); or • Send an e-mail to rule- as a result of damages caused by $0.10 per contract side from the [email protected]. Please include File tornadoes created from remnants of Summary of Index Option and FXI Number SR–Phlx–2004–70 on the Hurricane Charley that occurred August Options Charges, as this language is subject line. 12–13, 2004. Applications for loans for unnecessary. physical damage as a result of this Paper Comments 2. Statutory Basis disaster may be filed until the close of • Send paper comments in triplicate business on February 8, 2005 and for The Exchange believes that the to Jonathan G. Katz, Secretary, economic injury until the close of proposed rule change is consistent with business on September 9, 2005 at the 12 Securities and Exchange Commission, Section 6(b) of the Act in general, and 450 Fifth Street, NW., Washington, DC address listed below or other locally furthers the objectives of Section 6(b)(4) announced locations: 13 20549–0609. of the Act in particular, in that it is All submissions should refer to File an equitable allocation of reasonable U.S. Small Business Administration, Disaster Number SR–Phlx–2004–70. This file Area 1 Office, 360 Rainbow Blvd., South dues, fees, and other charges among number should be included on the 3rd Floor, Niagara Falls, NY 14303. Exchange members and issuers and subject line if e-mail is used. To help the The interest rates are: other persons using its facilities. Commission process and review your B. Self-Regulatory Organization’s comments more efficiently, please use Percent Statement on Burden on Competition only one method. The Commission will post all comments on the Commission’s For Physical Damage: The Exchange does not believe that Internet Web site (http://www.sec.gov/ Homeowners With Credit Avail- the proposed rule change will impose rules/sro.shtml). Copies of the able Elsewhere: ...... 6.375 any burden on competition that is not submission, all subsequent Homeowners Without Credit Available Elsewhere: ...... 3.187 necessary or appropriate in furtherance amendments, all written statements of the purposes of the Act. Businesses With Credit Available with respect to the proposed rule Elsewhere: ...... 5.800 C. Self-Regulatory Organization’s change that are filed with the Businesses and Non-Profit Orga- Statement on Comments on the Commission, and all written nizations Without Credit Avail- Proposed Rule Change Received From communications relating to the able Elsewhere: ...... 2.900 Members, Participants or Others proposed rule change between the Others (Including Non-Profit Or- Commission and any person, other than ganizations) With Credit Avail- No written comments were either those that may be withheld from the able Elsewhere: ...... 4.875 solicited or received. For Economic Injury: public in accordance with the Businesses and Small Agricul- III. Date of Effectiveness of the provisions of 5 U.S.C. 552, will be tural Cooperatives Without Proposed Rule Change and Timing for available for inspection and copying in Credit Available Elsewhere: .... 2.900 Commission Action the Commission’s Public Reference The foregoing proposal has become Room. Copies of such filing also will be The number assigned to this disaster effective pursuant to Section available for inspection and copying at for physical damage is 10003 and for 19(b)(3)(A)(ii) of the Act 14 and Rule the principal office of the Phlx. All economic damage is 10004. 19b–4(f)(2) 15 thereunder as a proposal comments received will be posted (Catalog of Federal Domestic Assistance establishing or changing a due, fee, or without change; the Commission does Program Nos. 59002 and 59008.) other charge imposed by the self- not edit personal identifying information from submissions. You Dated: December 9, 2004. regulatory organization. At any time Hector V. Barreto, within 60 days of the filing of the should submit only information that you wish to make available publicly. All Administrator. 12 15 U.S.C. 78f(b). submissions should refer to File [FR Doc. 04–27651 Filed 12–16–04; 8:45 am] 13 15 U.S.C. 78f(b)(4). Number SR–Phlx–2004–70 and should BILLING CODE 8025–01–P 14 15 U.S.C. 78s(b)(3)(A)(ii). 15 17 CFR 240.19b–4(f)(2). 16 See supra note 3. 17 17 CFR 200.30–3(a)(12).
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DEPARTMENT OF STATE matter, and in consultation with the DEPARTMENT OF STATE Attorney General and the Secretary of [Public Notice 4935] the Treasury, the Deputy Secretary of [Public Notice 4937] Determination Pursuant to Section State has concluded that there is a Designation of the Libyan Islamic 212(a)(3)(B)(vi)(II) of the Immigration sufficient factual basis to find that Fighting Group Also Known as LIFG as and Nationality Act, as Amended, Jam’at al Tawhid wa’al-Jihad, also a Foreign Terrorist Organization Placing Al Manar on the Terrorist known as the Zarqawi Network and Pursuant to Section 219 of the Exclusion List other aliases, has changed its name to Immigration and Nationality Act, as Tanzim Qa’idat al-Jihad fi Bilad al- Amended Acting under the authority of Section Rafidayn, and that the relevant 212(a)(3)(B)(vi)(II) of the Immigration circumstances in section 219(a)(1) of the Based upon a review of the and Nationality Act, as amended (INA), Immigration and Nationality Act, as Administrative Record assembled in 8 U.S.C. 1182(a)(3)(B)(vi)(II), and in amended (8U.S.C. 1189(a)(1)) still exist this matter, and in consultation with the consultation with the Attorney General with respect to that organization. Attorney General and the Secretary of and the Secretary of Homeland Security, the Treasury, the Deputy Secretary of the Secretary of State has concluded Therefore, effective upon the date of State has concluded that there is a that Al Manar is a ‘‘terrorist publication in the Federal Register, the sufficient factual basis to find that the organization’’ within the meaning of Deputy Secretary of State hereby relevant circumstances described in that section of the INA. amends the 2004 designation of that Section 219 of the Immigration and This notice shall be published in the organization as a foreign terrorist Nationality Act, as amended (hereinafter Federal Register, and is effective upon organization, pursuant to § 219(a)(4)(B) ‘‘INA’’), 8 U.S.C. 1189, exist with publication. of the INA (8 U.S.C. 1189(a)(4)(B)), to respect to the Libyan Islamic Fighting Dated: December 15, 2004. include the following new names: Group. The Libyan Islamic Fighting William P. Pope, Tanzim Qa’idat al-Jihad fi Bilad al- Group is also known as LIFG. Coordinator for Counterterrorism, Acting, Rafidayn, Therefore, the Deputy Secretary of Department of State. State hereby designates that The Organization of al-Jihad’s Base in organization as a Foreign Terrorist [FR Doc. 04–27801 Filed 12–16–04; 5:00 pm] Iraq, BILLING CODE 4710–10–P Organization pursuant to Section 219(a) The Organization of al-Jihad’s Base of of the INA. Operations in Iraq, Dated: December 15, 2004. DEPARTMENT OF STATE al-Qaida of Jihad in Iraq, al-Qaida in William P. Pope, [Public Notice 4936] Iraq, Acting Coordinator for Counterterrorism, al-Qaida in Mesopotamia, Department of State. Foreign Terrorists and Terrorist [FR Doc. 04–27800 Filed 12–16–04; 5:00 pm] al-Qaida in the Land of the Two Rivers, Organizations; Designation: Jam’at al BILLING CODE 4710–10–P Tawhid Wa’al-Jihad et al. al-Qaida of the Jihad in the Land of the Two Rivers, In the Matter of the Amended Designation of Jam’at al Tawhid wa’al-Jihad, also known al-Qaida of Jihad Organization in the DEPARTMENT OF TRANSPORTATION as The Monotheism and Jihad Group, also Land of the Two Rivers, known as the al-Zarqawi Network, also al-Qaida Group of Jihad in Iraq, Federal Aviation Administration known as al-Tawhid, also known as Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn, also al-Qaida Group of Jihad in the Land of [Docket No. FAA–2004–19834] known as The Organization of al-Jihad’s Base the Two Rivers, Proposed Advisory Circular 45–2C, in Iraq, also known as The Organization of The Organization of Jihad’s Base in the Identification and Registration Marking al-Jihad’s Base of Operations in Iraq, also Country of the Two Rivers, known as al-Qaida of Jihad in Iraq, also known as al-Qaida in Iraq, also known as al- The Organization Base of Jihad/Country AGENCY: Federal Aviation Qaida in Mesopotamia, also known as al- of the Two Rivers, Administration (FAA), DOT. Qaida in the Land of the Two Rivers, also ACTION: Notice of availability. known as al-Qaida of the Jihad in the Land The Organization of al-Jihad’s Base in of the Two Rivers, also known as al-Qaida of the Land of the Two Rivers, SUMMARY: This notice announces the Jihad Organization in the Land of the Two The Organization Base of Jihad/ availability of Advisory Circular (AC) Rivers, also known as al-Qaida Group of Mesopotamia, 45–2C, Identification and Registration Jihad in Iraq, also known as al-Qaida Group Marking, for review and comments. The of Jihad in the Land of the Two Rivers, also The Organization of al-Jihad’s Base of known as The Organization of Jihad’s Base in Operations in the Land of the proposed AC provides guidance and the Country of the Two Rivers, also known TwoRivers, information to comply with the as The Organization Base of Jihad/Country of requirements for identifying aircraft and the Two Rivers, also known as The Tanzeem qa’idat al Jihad/Bilad al related products with identification Organization of al-Jihad’s Base in the Land of Raafidaini. plates, and identifying aircraft with the Two Rivers, also known as The Dated: December 15, 2004. nationality and registration marks. This Organization Base of Jihad/Mesopotamia, William P. Pope, AC provides a means, but not the only also known as The Organization of al-Jihad’s means, of demonstrating compliance Base of Operations in the Land of the Two Acting Coordinator for Counterterrorism with the requirements of Title 14, Code Rivers, also known as Tanzeem qa’idat al Department of State. of Federal Regulations (14 CFR), part 45, Jihad/Bilad al Raafidaini, as a Foreign [FR Doc. 04–27799 Filed 12–16–04; 5:00 pm] Terrorist Organization pursuant to Section Identification and Registration Marking. BILLING CODE 4710–10–P 219 of the Immigration and Nationality Act. DATES: Comments submitted must Based upon a review of the identify the proposed AC 45–2C and be administrative record assembled in this received no later than January 18, 2005.
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ADDRESSES: Copies of this proposed AC Issued in Washington, DC, on December DEPARTMENT OF TRANSPORTATION can be obtained from the Federal 10, 2004. Aviation Administration, Airworthiness Frank P. Paskiewicz, Federal Aviation Administration Certification Branch, AIR–230, Manager, Production and Airworthiness Production and Airworthiness Division, Division. [Summary Notice No. PE–2004–91] Aircraft Certification Service, 800 [FR Doc. 04–27597 Filed 12–16–04; 8:45 am] Petitions for Exemption; Dispositions Independence Avenue, SW., BILLING CODE 4910–13–M Washington, DC 20591 or at http:// of Petitions Issued dms.dot.gov. Send comments on this AC AGENCY: Federal Aviation 45–2C, Identification and Registration DEPARTMENT OF TRANSPORTATION Administration (FAA), DOT. Marking to the Docket Management System, U.S. Department of Federal Aviation Administration ACTION: Notice of disposition of prior Transportation, Room Plaza 401, 400 petition. Amended Notice of Public Comment Seventh Street, SW., Washington, DC Period for Draft Environmental Impact SUMMARY: Pursuant to FAA’s rulemaking 20590–0001. You must identify the Statement (DEIS) for Proposed provisions governing the application, docket number FAA–2004–19834, at the Relocation of the Panama City-Bay processing, and disposition of petitions beginning of your comments. You may County International Airport to a New for exemption, part 11 of Title 14, Code also submit comments to the Internet at Site in Bay County, FL of Federal Regulations (14 CFR), this http://dms.dot.gov. You may review the notice contains the disposition of public docket containing AC 45–2C, AGENCY: Federal Aviation certain petitions previously received. Identification and Registration Marking, Administration (FAA), DOT. The U.S. The purpose of this notice is to improve any comments received, and any final Army Corps of Engineers (USACE) is a the public’s awareness of, and disposition in person in the Dockets cooperating federal agency, having participation in, this aspect of FAA’s Office between 9 a.m. and 5 p.m., jurisdiction by law because of the regulatory activities. Neither publication Monday through Friday, except Federal proposed federal action has the of this notice nor the inclusion or holidays. The Docket Office (telephone potential for significant wetland omission of information in the summary 1–800–647–5527) in on the plaza level impacts. is intended to affect the legal status of of Transportation NASSIF Building at any petition or its final disposition. ACTION: Amended notice of public the above address. comment period. FOR FURTHER INFORMATION CONTACT: Jan FOR FURTHER INFORMATION CONTACT: Thor, (425) 227–2127, Transport David Broughton, Airworthiness SUMMARY: The Federal Aviation Airplane Directorate (ANM–113), Certification Branch, AIR–230, Administration (FAA) is issuing this Federal Aviation Administration, 1601 Production and Airworthiness Division, amended notice to advise the public Lind Ave SW., Renton, WA 98055– Aircraft Certification Service, 800 that the public comment period for the 4056; or John Linsenmeyer (202) 267– Independence Avenue, SW., Draft Environmental Impact Statement 5174, Office of Rulemaking (ARM–1), Washington, DC 20591; telephone: (202) (DEIS)—Proposed Relocation of the Federal Aviation Administration, 800 Independence Avenue, SW., 267–8361. Panama City—Bay County International Airport, has been extended from January Washington, DC 20591. This notice is SUPPLEMENTARY INFORMATION: 21, 2005, to January 28, 2005, due to published pursuant to 14 CFR 11.85 and 11.91. Background requests from the public. Original notices of availability of the DEIS was Issued in Washington, DC, on December Proposed AC 45–2C is written in the published in the Federal Register by 10, 2004. Plain Language format to provide USEPA on November 26, 2004 [68 FR Anthony F. Fazio, information and guidance on the 68899] and by FAA on December 3, Director, Office of Rulemaking. requirements of identifying aircraft and 2004 [69 FR 70302]. Written requests for Disposition of Petitions related products with identification the DEIS and written comments on the plates, and identifying aircraft with DEIS can be submitted to the individual Docket No.: FAA–2004–18747. nationality and registration marks. listed in the section FOR FURTHER Petitioner: Lockheed Martin Aircraft INFORMATION CONTACT. Comments Invited and Logistics Centers. FOR FURTHER INFORMATION CONTACT: Sections of 14 CFR Affected: 14 CFR Interested persons are invited to Virginia Lane, Environmental Specialist, 25.807(g)(1) and 25.807(i)(1). comment on proposed AC 45–2C listed Federal Aviation Administration, Description of Relief Sought/ in this notice by submitting such Orlando Airports District Office, Suite Disposition: To permit relief from the written data, views, or arguments, as 400, 5950 Hazeltine National Drive, requirements of the regulations to allow they desire, to the above specified Orlando, Florida 32822. Ms. Lane can be carriage of six non-crewmembers address. The Aircraft Certification contacted at (407) 812–6331 (voice), (commonly referred to as Service will consider all (407) 812–6978 (facsimile). supernumeraries) on the Gulfstream communications received on or before Issued in Washington, DC on December 13, Model GV–SP (G550) airplanes which the closing date before issuing the final 2004. have been converted from a passenger to a Compartment Airborne Early Warning AC. Ralph Thompson, (CAEW) configuration. Comments received on the proposed Manager, Community and Environmental AC may be examined before and after Needs Division, Office of Airport Planning Partial Grant of Exemption, 12/03/04, the comment closing date as explained and Programming. Exemption No. 8453. above. [FR Doc. 04–27691 Filed 12–16–04; 8:45 am] [FR Doc. 04–27684 Filed 12–16–04; 8:45 am] BILLING CODE 4910–13–M BILLING CODE 4910–13–P
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DEPARTMENT OF TRANSPORTATION Section of 14 CFR Affected: 14 CFR within the preceding 12 calendar 91.169(a)(2) and (c). months, provided the combined flight Federal Aviation Administration Description of Relief Sought/ time in any Boeing model 707 or 747 [Summary Notice No. PE–2004–89] Disposition: To permit the Department aircraft, or Level B, C, or D simulator of the Army to file instrument flight that represents any Boeing model 707 or Petitions for Exemption; Dispositions rules flight plans in accordance with the 747 aircraft, is at least 100 hours in the of Petitions Issued regulations prescribed by the United preceding 12 calendar months. States Army. Grant, 10/21/2004, Exemption No. AGENCY: Federal Aviation Grant, 10/28/2004, Exemption No. 2718A. Administration (FAA), DOT. 8430. Docket No.: FAA–2001–9032. ACTION: Notice of dispositions of prior Docket No.: FAA–2000–7980. Petitioner: Ameriflight, Inc. petitions. Petitioner: Air Transport Association Section of 14 CFR Affected: 14 CFR of America. SUMMARY: Pursuant to FAA’s rulemaking 61.3(a) and (c), 91.203(a) and (b), Section of 14 CFR Affected: 14 CFR provisions governing the application, 121.153(a)(1), and 121.383(a)(2). 121.311(b). processing, and disposition of petitions Description of Relief Sought/ Description of Relief Sought/ Disposition: To permit Ameriflight, Inc., for exemption part 11 of Title 14, Code Disposition: To permit Air Transport of Federal Regulations (14 CFR), this to temporarily operate its aircraft in Association of America-member airlines accordance with parts 121 and 135 of 14 notice contains a summary of certain and other similarly situated part 121 dispositions of certain petitions CFR without airworthiness and operators to permit qualified flight registration certificates onboard (and previously received. The purpose of this attendants not required by § 121.391(c) notice is to improve the public’s properly displayed in the case of to perform duties related to the safety of airworthiness certificates) while awareness of, and participation in, this the airplane and its occupants during aspect of FAA’s regulatory activities. obtaining replacements, subject to aircraft movement on the surface. certain conditions and limitations. FOR FURTHER INFORMATION CONTACT: Tim Grant, 10/26/2004, Exemption No. Grant, 10/28/2004, Exemption No. Adams (202) 267–8033, or Sandy 5533F. Buchanan-Sumter (202) 267–7271, 7143C. Docket No.: FAA–2002–13588. Docket No.: FAA–2004–18703. Office of Rulemaking (ARM–1), Federal Petitioner: United States Hang Gliding Petitioner: ABX Air, Inc. Aviation Administration, 800 Association, Inc. Section of 14 CFR Affected: 14 CFR Independence Avenue, SW., Section of 14 CFR Affected: 14 CFR 121.613, 121.623, and 121.625. Washington, DC 20591. 103.1(a) and (b). Description of Relief Sought/ This notice is published pursuant to 14 Description of Relief Sought/ CFR 11.85 and 11.91. Disposition: To permit the United States Disposition: To permit ABX Air, Inc., to dispatch aircraft under instrument flight Issued in Washington, DC, on December Hang Gliding Association, Inc., to 10, 2004. operate unpowered ultralight vehicles rules when conditional language in a one-time increment of weather forecast Anthony F. Fazio, (hang gliders) weighing less than 155 states that the weather at the destination Director, Office of Rulemaking. pounds, with another occupant, for the purpose of sport, training, or recreation. airport, alternate airport, or both Dispositions of Petitions Grant, 10/25/2004, Exemption No. airports could be below the authorized Docket No.: FAA–2001–8634. 4721I. weather minimums when other time Petitioner: Comair, Inc., d.b.a. Delta increments of the weather forecast state Docket No.: FAA–2001–8841. that the weather conditions will be at or Connection. Petitioner: Hammerhead Aerobatics, above the authorized weather Section of 14 CFR Affected: 14 CFR Inc. minimums, subject to certain conditions 93.127. Section of 14 CFR Affected: 14 CFR and limitations. Description of Relief Sought/ 91.315. Grant, 10/28/2004, Exemption No. Disposition: To permit Comair, Inc., Description of Relief Sought/ 8432. d.b.a. Delta Connection, to conduct Disposition: To permit Hammerhead domestic operations using its eight Aerobatics, Inc., to operate its Sukhoi Docket No.: FAA–2004–19324. international slots at LaGuardia Airport. Su–29 aircraft, which holds an Petitioner: Pomona Valley Pilots Grant, 10/28/2004, Exemption No. experimental airworthiness certificate, Association. 7434B. for the purpose of dual instruction and Section of 14 CFR Affected: 14 CFR Docket No.: FAA–2004–19341. demonstration flights for compensation, 135.251, 135.255, 135.353, and Petitioner: Bell Agusta Aerospace until the Su–29 can be certificated appendices I and J to part 121. Company. under 14 CFR part 23. Description of Relief Sought/ Section of 14 CFR Affected: 14 CFR Denial, 10/21/2004, Exemption No. Disposition: To permit Pomona Valley 61.77(a). 8427. Pilots Association to conduct local Description of Relief Sought/ Docket No.: FAA–2004–19374. sightseeing flights for the Pomona Disposition: To permit Bell Agusta Petitioner: The Boeing Company. Valley Air Fair at the Cable Airport, Aerospace Company to obtain special Section of 14 CFR Affected: 14 CFR Upland, California, on or about January purpose pilot authorizations for its 91.529(b). 8 and 9, 2005, for compensation and pilots to ferry and operate U.S.- Description of Relief Sought/ hire, without complying with certain registered AB 139 helicopters to various Disposition: To permit flight engineers, anti-drug and alcohol misuse prevention U.S. locations for the purpose of flight employed by The Boeing Company, to requirements of part 135, subject to training. serve as flight engineers on B–707 and certain conditions and limitations. Grant, 10/28/2004, Exemption No. B–747 aircraft if they have logged a Grant, 11/1/2004, Exemption No. 8431. minimum of 20 hours in lieu of the 8435. Docket No.: FAA–2002–11883. required 50 hours flight time as flight Docket No.: FAA–2004–19047. Petitioner: Department of the Army. engineers on the particular type aircraft Petitioner: Mr. James Vernon Ricks, Jr.
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Section of 14 CFR Affected: 14 CFR Harbor, Inc., to conduct seaplane Section of 14 CFR Affected:14 CFR 135.251, 135.255, 135.353, and operations under visual flight rules, 121.623(a) and (d), 121.643, and appendices I and J to part 121. outside controlled airspace, over water, 121.645(e). Description of Relief Sought/ and at an altitude below 500 feet above Description of Relief Sought/ Disposition: To permit Mr. James ground level. Disposition:To permit Midwest Airlines, Vernon Ricks, Jr., to conduct local Grant, 11/15/2004, Exemption No. Inc., to conduct its supplemental sightseeing flights at the Greenwood- 2528M. operations within the 48 contiguous Leflore Airport, Greenwood, Docket No.: FAA–2002–13066. United States and the District of Mississippi, on or about the dates Petitioner: Department of the Army. Columbia using the flight regulations for mentioned in the petition, for Section of 14 CFR Affected: 14 CFR alternate airports as required by compensation or hire, without 91.209(a)(1) and (2). § 121.619 and fuel reserve requirements complying with certain anti-drug and Description of Relief Sought/ as required by § 121.639 that are alcohol misuse prevention requirements Disposition: To permit the Department applicable to domestic operations, of part 135, subject to certain conditions of the Army to conduct certain military subject to certain conditions and and limitations. training operations at night without limitations. Grant, 11/4/2004, Exemption No. lighted aircraft position lights. Grant, 11/16/2004, Exemption No. 8436. Grant, 11/15/2004, Exemption No. 8444. Docket No.: FAA–2004–19417. 3946I. Docket No.: FAA–2002–13297. Petitioner: United Airlines, Inc. Petitioner: Lufthansa Cargo AG. Docket No.: FAA–2000–8337. Section of 14 CFR Affected: 14 CFR Section of 14 CFR Affected:14 CFR Petitioner: Alaska’s Lake Clark Inn. 121.665 and 121.697(a) and (b). 61.77(a). Section of 14 CFR Affected: 14 CFR Description of Relief Sought/ Description of Relief Sought/ 135.143(c)(2). Disposition:To permit United Airlines, Disposition: To permit pilots employed Description of Relief Sought/ by Lufthansa Cargo AG to be eligible for Inc., to continue to use computerized Disposition: To permit Alaska’s Lake load manifests that bear the printed the issuance of special purpose pilot Clark Inn to operate certain aircraft authorizations under part 61, subject to name and position of the person under part 135 without a TSO–C112 responsible for loading the aircraft, certain conditions and limitations. (Mode S) transponder installed on those Grant, 11/4/2004, Exemption No. instead of that person’s signature. aircraft. Grant, 11/16/2004, Exemption No. 8437. Grant, 11/15/2004, Exemption No. 2466O. Docket No.: FAA–2000–8182. 7426B. Docket No.: FAA–2000–8180. Petitioner: Washoe County Sheriff’s Docket No.: FAA–2002–11715. Petitioner: Regional Airline Office. Petitioner: Chevron U.S.A. Association. Section of 14 CFR Affected: 14 CFR Section of 14 CFR Affected: 14 CFR Section of 14 CFR Affected:14 CFR 61.113(e). 135.143(c)(2). 61.3(a) and (c). Description of Relief Sought/ Description of Relief Sought/ Description of Relief Sought/ Disposition: To permit members of the Disposition: To permit Chevron U.S.A. Disposition:To permit Regional Airline Washoe County Sheriff’s Air Squadron to operate certain aircraft under part 135 Association member carriers and who hold private pilot certificates an without a TSO–C112 (Mode S) similarly situated 14 CFR part 135 air amendment to Exemption No. 7473A, transponder installed on those aircraft. carriers the establishment of special which would permit them to transport Grant, 11/15/2004, Exemption No. procedures that enable an operator to needed supplies and search specialists 8440. issue to its flight crewmembers, on a or teams, such as dogs, mantrackers, and Docket No.: FAA–2004–19611. temporary basis, confirmation of any technical rescue teams, to the scene of Petitioner: Seattle Jet Services, Inc. required crewmember certificate based a rescue when conducting search and Section of 14 CFR Affected: 14 CFR on information contained in the location missions. 135.143(c)(2). operator’s approved record system. Denial, 11/4/2004, Exemption No. Description of Relief Sought/ Grant, 11/16/2004, Exemption No. 7473B. Disposition: To permit Seattle Jet 5560E. Docket No.: FAA–2001–10205. Services, Inc., to operate certain aircraft Docket No.: FAA–2001–10501. Petitioner: Massachusetts Institute of under part 135 without a TSO–C112 Petitioner: Mr. P. Barton Richards. Technology, Lincoln Laboratory. (Mode S) transponder installed on those Section of 14 CFR Affected:14 CFR Section of 14 CFR Affected: 14 CFR aircraft. 61.129(c)(4)(ii). 142.57(a)(1). Grant, 11/15/2004, Exemption No. Description of Relief Sought/ Description of Relief Sought/ 8441. Disposition:To permit Mr. P. Barton Disposition: To permit the Docket No.: FAA–2004–19553. Richards to obtain a commercial pilot Massachusetts Institute of Technology, Petitioner: Flightworks Executive certificate with a rotorcraft category and Lincoln Laboratory, to use a Boeing 707 Charter. helicopter class rating by substituting airplane that operates as a public Section of 14 CFR Affected: 14 CFR the requirement for 5 hours of solo night aircraft to conduct training under 14 135.143(c)(2). flight time with 5 hours of night flight CFR part 61 for Lincoln Laboratory Description of Relief Sought/ time as pilot in command with another flight crewmembers. Disposition:To permit Flightworks pilot aboard the helicopter. Denial, 11/4/2004, Exemption No. Executive Charter to operate certain Denial, 11/17/2004, Exemption No. 8438. aircraft under part 135 without a TSO– 8445. Docket No.: FAA–2003–14309. C112 (Mode S) transponder installed on Docket No.: FAA–2004–19545. Petitioner: Kenmore Air Harbor, Inc. those aircraft. Petitioner: Omni Aviation Services. Section of 14 CFR Affected: 14 CFR Grant, 11/15/2004, Exemption No. Section of 14 CFR Affected:14 CFR 135.203(a)(1). 8443. 135.143(c)(2). Description of Relief Sought/ Docket No.: FAA–2004–19514. Description of Relief Sought/ Disposition: To permit Kenmore Air Petitioner: Midwest Airlines, Inc. Disposition:To permit Omni Aviation
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Services to operate certain aircraft under Banen to conduct certain flight Ltd., to operate one Gulfstream G1159 part 135 without a TSO–C112 (Mode S) instruction and simulated instrument airplane, U.S. Registration No. N400WY, transponder installed on those aircraft flight to meet recent instrument Serial No. 467, without the digital flight listed in the petition. experience requirements in Beechcraft data recorder required by the regulation. Grant, 11/19/2004, Exemption No. Baron and Bonanza airplanes equipped Denial, 11/30/2004, Exemption No. 8446. with a functioning throwover control 8452. Docket No.: FAA–2004–19650. wheel in place of functioning dual Docket No.: FAA–2000–8148. Petitioner: Smoky Mountain controls. Petitioner: Epps Aviation. Helicopters, Inc., d.b.a. Inter Island Grant, 11/19/2004, Exemption No. Section of 14 CFR Affected: 14 CFR Helicopters of Kauai. 7467B. 135.143(c)(2). Section of 14 CFR Affected:14 CFR Docket No.: FAA–2001–9141. Description of Relief Sought/ 135.143(c)(2). Petitioner: Business Aviation Courier. Disposition: To permit Epps Aviation to Description of Relief Sought/ Section of 14 CFR Affected:14 CFR operate certain aircraft under part 135 Disposition:To permit Smoky Mountain 135.143(c)(2). without a TSO–C112 (Mode S) Helicopters, Inc., d.b.a. Inter Island Description of Relief Sought/ transponder installed on those aircraft. Helicopters of Kauai, to operate certain Disposition:To permit Business Aviation Grant, 11/30/2004, Exemption No. aircraft under part 135 without a TSO– Courier an amendment to Exemption 6037E. C112 (Mode S) transponder installed on No. 7488, which will allow the Docket No.: FAA–2002–11285. those aircraft. Fairchild Metro III aircraft, N366AE– Grant, 11/22/2004, Exemption No. Petitioner: Commemorative Air Force. AC681B, to operate under part 135 8447. Section of 14 CFR Affected: 14 CFR without a TSO–C112 (Mode S) 91.319, 119.5(g), and 119.25(b). Docket No.: FAA–2004–19662. transponder installed on the aircraft. Petitioner: Mulchatna Air Service, Description of Relief Sought/ Grant, 11/26/2004, Exemption No. Disposition: To permit Commemorative LLC. 7488B. Section of 14 CFR Affected:14 CFR Air Force to operate certain military 135.143(c)(2). Docket No.: FAA–2003–14227. aircraft for the purpose of carrying Description of Relief Sought/ Petitioner: Kenmore Air Harbor, Inc. passengers on local educational flights. Disposition:To permit Mulchatna Air Section of 14 CFR Affected:14 CFR Grant, 12/1/2004, Exemption No. Service, LLC to operate certain aircraft 135.154(b)(2). 6802D. under part 135 without a TSO–C112 Description of Relief Sought/ Docket No.: FAA–2004–19488. (Mode S) transponder installed on those Disposition: To permit Kenmore Air Petitioner: Air Maui. aircraft. Harbor, Inc., to operate nine single-pilot, Section of 14 CFR Affected: 14 CFR Grant, 11/22/2004, Exemption No. single-engine, turbine-powered 135.143(c)(2). 8448. seaplanes (two De Havilland DHC–2 MK Description of Relief Sought/ III Turbo Beavers and seven De Docket No.: FAA–2004–19481. Disposition: To permit Air Maui to Petitioner: Embry-Riddle Aeronautical Havilland DHC–3 Turbo Otters) within operate certain aircraft under part 135 University. and outside the United States without a TSO–C112 (Mode S) Section of 14 CFR Affected:14 CFR afterMarch 29, 2005, without being transponder installed on those aircraft. 61.71(a). equipped with an approved terrain Grant, 11/15/204, Exemption No. Description of Relief Sought/ awareness and warning system that 8442. Disposition:To permit Embry-Riddle meets the requirements for class B Aeronautical University to issue a equipment in Technical Standard Order [FR Doc. 04–27685 Filed 12–16–04; 8:45 am] commercial pilot certificate to John C151. BILLING CODE 4910–13–P Robert Bounds, Joseph Sylvester Vidas, Denial, 11/30/2004, Exemption No. 8451. Peter Scott Vallely, and Luke Klassen DEPARTMENT OF TRANSPORTATION Snyder upon successfully completing Docket No.: FAA–2001–8744. their practical test, subject to certain Petitioner: Evergreen Aviation Federal Aviation Administration conditions and limitations. Museum. Grant, 11/18/2004, Exemption No. Section of 14 CFR Affected: 14 CFR Notice of Intent To Rule on Application 8449. 91.315, 91.319(a), 119.5(g), and (05–05–CX–00–DRO) To Impose and To Docket No.: FAA–2004–19663. 119.21(a). Use a Passenger Facility Charge (PFC) Petitioner: Global Lift Helicopters, Description of Relief Sought/ at the Durango-La Plata County LLC. Disposition: To permit Evergreen Airport, Submitted by the County of La Section of 14 CFR Affected:14 CFR Aviation Museum to operate its Boeing Plata and the City of Durango, CO 135.143(c)(2). B–17 aircraft, Serial No. 44–83785, and Description of Relief Sought/ its Grumman TBM–3E Avenger Torpedo AGENCY: Federal Aviation Disposition:To permit Global Life Bomber, Serial No. 91726, which hold a Administration (FAA), DOT. Helicopters, LLC, to operate certain limited category airworthiness ACTION: Notice of intent to rule on aircraft under part 135 without a TSO– certificate for purpose of carrying application. C112 (Mode S) transponder installed on passengers on local flights in return for those aircraft. donations. SUMMARY: The FAA proposes to rule and Grant, 11/22/2004, Exemption No. Grant, 11/30/2004, Exemption No. invites public comment on the 8450. 6632F. application to impose and use a PFC at Docket No.: FAA–2001–8881. Docket No.: FAA–2004–19105. the Durango-La Plata County Airport Petitioner: Mr. Allen N. Banen. Petitioner: C & S Aviation, Ltd. under the provisions of 49 U.S.C. 40117 Section of 14 CFR Affected:14 CFR Section of 14 CFR Affected: 14 CFR and part 158 of the Federal Aviation 91.109(a) and (b)(3). 135.152(a). Regulations (14 CFR 158). Description of Relief Sought/ Description of Relief Sought/ DATES: Comments must be received on Disposition:To permit Mr. Allen N. Disposition: To permit C & S Aviation or before January 18, 2005.
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ADDRESSES: Comments on this Any person may inspect the Commission, 200 Terminal Drive, application may be mailed or delivered application inperson at the FAA office Lafayette, LA 70508–2159. in triplicate to the FAA at the following listed above under ‘‘FOR FURTHER Air carriers and foreign air carriers address: Craig Sparks, Manager; Denver INFORMATION CONTACT’’ and at the FAA may submit copies of the written Airports District Office, DEN–ADO; Regional Airports Office located at: comments previously provided to the Federal Aviation Administration; 26805 Federal Aviation Administration, Airport under Section 158.23 of part E. 68th Avenue, Suite 224; Denver, Northwest Mountain Region, Airports 158. Colorado 80249–6361. Division, ANM–600, 1601 Lind Avenue FOR FURTHER INFORMATION CONTACT: Mr. In addition, one copy of any SW., Suite 315, Renton, WA 98055– G. Thomas Wade, Federal Aviation comments submitted to the FAA must 4056. Administration, Southwest Region, be mailed or delivered to Mr. Ron Dent, In addition, any person may, upon Airports Division, Planning and A.A.E. at the following address: request, inspect the application, notice, Programming Branch, ASW–611, Fort Durango-La Plata County Airport, 1000 and other documents germane to the Worth, TX 76193–0610, (817) 222–5613. Airport Road, Box 1, Durango, Colorado application in person at the Durango-La The application may be reviewed in 81303. Plata County Airport. person at this same location. Air Carriers and foreign air carriers Issued in Renton, Washington on SUPPLEMENTARY INFORMATION: may submit copies of written comments The FAA December 10, 2004. proposes to rule and invites public previously provided to the Durango-La David A. Field, Plata County Airport, under section comment on the application to impose Manager, Planning, Programming and 158.23 of part 158. and use the revenue from a PFC at Capacity Branch, Northwest Mountain Lafayette Regional Airport under the FOR FURTHER INFORMATION CONTACT: Mr. Region. provisions of the Aviation Safety and Christopher Schaffer, (303) 342–1258; [FR Doc. 04–27692 Filed 12–16–04; 8:45 am] Capacity Expansion Act of 1990 (Title Denver Airports District Office, DEN– BILLING CODE 4910–13–M IX of the Omnibus Budget ADO; Federal Aviation Administration; Reconciliation Act of 1990) (Pub. L. 26805 E. 68th Avenue, Suite 224; 101–508) and part 158 of the Fedr3eal Denver, Colorado 80249–6361. The DEPARTMENT OF TRANSPORTATION Aviation Regulations (14 CFR part 158). application may be reviewed in person On December 9, 2004, the FAA at this same location. Federal Aviation Administration determined that the application to SUPPLEMENTARY INFORMATION: The FAA Notice of Intent To Rule on Application impose and use the revenue from a PFC proposes to rule and invites public To Impose and Use the Revenue From submitted by the Airport was comment on the application (05–05–C– a Passenger Facility Charge (PFC) at su7btantially complete within the 00–DRO) to impose and use a PFC at the Lafayette Regional Airport, Lafayette, requirements of Section 158.25 of part Durango-La Plata County Airport, under LA 158. The FAA will approve or the provisions of 49 U.S.C. 40117 and disapprove the application, in whole or part 158 of the Federal Aviation AGENCY: Federal Aviation in part, no later than March 8, 2005. Regulations (14 CFR part 158). Administration (FAA), DOT. The following is a brief overview of On December 10, 2004, the FAA ACTION: Notice of intent to rule on the application. determined that the application to application. Level of the Proposed PFC: $4.50. impose and use PFC submitted by the Proposed Charge Effective Date: County of La Plata and the City of SUMMARY: The FAA proposes to rule and January 1, 2005. Durango, Colorado, was substantially invites public comment on the Proposed Charge Expiration Date: complete within the requirements of application to impose and use the February 1, 2008. § 158.25 of part 158. The FAA will revenue from a PFC at Lafayette Total Estimated PFC Revenue: approve or disapprove the application, Regional Airport under the provisions of $2,270,000. in whole or in part, no later than March the Aviation Safety and Capacity PFC Application Number: 05–04–C– 12, 2005. Expansion Act of 1990 (Title IX of the 00–LFT. The following is a brief overview of Omnibus Budget Reconciliation Act of Brief description of Proposed the application. 1990) (Pub. L. 101–508) and part 158 of project(s): Level of the Proposed PFC: $4.50. the Federal Aviation Regulations (14 Projects to Impose and Use PFC’s Proposed Charge-Effective Date: CFR part 158). December 1, 2004. 1. Replace Taxiway Guidance Signs. Proposed Charge-Expiration Date: DATES: Comments must be received on 2. Rehabilitate Airfield Electrical December 30, 2008. or before January 18, 2005. System. Total Requested for Collection ADDRESSES: Comments on this 3. Upgrade Runway 11/29 Lighting. Approval: $1,604,120. application may be mailed or delivered 4. Rehabilitate Airfield Lighting Brief Description of Proposed Projects: in triplicate copies to the FAA at the Control System. Construct north ramp and access following address: Mr. G. Thomas 5. Upgrade Taxiway Lighting. taxiway, realign airport entrance road Wade, Federal Aviation Administration, 6. PFC Application Development and and resurface terminal roadways, Southwest Region, Airports Division, Administrative Fees. prepare environmental assessment of Planning and Programming Branch, Proposed Class or Classes of Air south Taxiway A extension, design ASW–611, Fort Worth, TX 76193–0610. Carriers to be Exempted From Collecting south Taxiway A extension, acquire In addition, one copy of any PFC’s: FAR part 135 on demand air south runway protection zone land, comments submitted to the FAA must Taxi/Commercial Operator (ATCO) acquire glycol recovery system, be mailed or delivered to Gregory reporting on FAA Form 1800–31. construct south Taxiway A extension. Roberts, Director of Aviation for Any person may inspect the Class or Classes of Air Carriers That Lafayette Regional Airport at the application in person at the FAA office the Public Agency Has Requested Not be following address: Mr. Gregory Roberts, listed above under FOR FURTHER Required to Collect PFC’s: None. Director of Aviation, Lafayette Airport INFORMATION CONTACT and at the FAA
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regional Airports office located at: District Office, 831 Mitten Road, Room DEPARTMENT OF TRANSPORTATION Federal Aviation Administration, 210, Burlingame, CA 94010–1303, Southwest Region, Airports Division, Telephone: (650) 876–2778, extension Federal Aviation Administration Planning and Programming Branch, 610. The application may be reviewed ASW–610, 2601 Meacham Blvd., Fort in person at this same location. Notice of Intent To Rule on Application Worth, TX 76137–4298. (05–04–U–00–TEX) To Use a Passenger In addition, any person may, upon SUPPLEMENTARY INFORMATION: The FAA Facility Charge (PFC) at the Telluride request, inspect the application, notice proposes to rule and invites public Regional Airport, Submitted By the and other documents germane to the comment on the application to impose Telluride Regional Airport Authority, application in person at Lafayette and use the revenue from a PFC at Telluride, CO Regional Airport. Monterey Peninsula Airport under the AGENCY: provisions of the 49 U.S.C. 40117 and Federal Aviation Issued in Fort Worth, Texas on December Administration (FAA), DOT. 9, 2005. part 158 of the Federal Aviation Regulations (14 CFR part 158). ACTION: Notice of intent to rule on D. Cameron Bryan, application. Acting manager, Airports Division. On December 10, 2004, the FAA [FR Doc. 04–27690 Filed 12–16–04; 8:45 am] determined that the application to SUMMARY: The FAA proposes to rule and BILLING CODE 4910–13–M impose and use the revenue from a PFC invites public comment on the submitted by the Monterey Peninsula application to use a PFC at the Telluride Airport District was substantially Regional Airport under the provisions of DEPARTMENT OF TRANSPORTATION complete within the requirements of 49 U.S.C. 40117 and part 158 of the section 158.25 of Part 158. The FAA Federal Aviation Regulations (14 CFR Federal Aviation Administration will approve or disapprove the 158). application, in whole or in part, no later Notice of Intent To Rule on Application DATES: Comments must be received on than March 22, 2005. To Impose and Use the Revenue From or before January 18, 2005. a Passenger Facility Charge (PFC) at The following is a brief overview of ADDRESSES: Comments on this Monterey Peninsula Airport, Monterey, the impose and use application. application may be mailed or delivered CA No. 05–11–C–00–MRY: in triplicate to the FAA at the following AGENCY: Federal Aviation Level of Proposed PFC: $4.50. address: Craig Sparks, Manager; Denver Administration (FAA), DOT. Airports District Office, DEN–ADO; Proposed Charge Effective Date: Federal Aviation Administration; 26805 ACTION: Notice of intent to rule on March 1, 2005. E. 68th Avenue, Suite 224; Denver application. Proposed Charge Expiration Date: Colorado 80249–6361. SUMMARY: The FAA proposes to rule and September 1, 2011. In addition, one copy of any invites public comment on the Total Estimated PFC Revenue: comments submitted to the FAA must application to impose and use the $957,132. be mailed or delivered to Mr. Richard revenue from a PFC at Monterey W. Nuttall, Airport Manager, at the Peninsula Airport under the provisions Brief Description of the Proposed following address: Telluride Regional of the 49 U.S.C. 40117 and part 158 of Projects: Terminal Passenger Circulation Airport, 1500 Last Dollar Road, Suite 1, the Federal Aviation Regulations (14 and Building Improvements, Airport Telluride, Colorado 81435. CFR part 158). Rescue and Fire Fighting Equipment, Air Carriers and foreign air carriers and Terminal Elevator. DATES: Comments must be received on may submit copies of written comments or before January 18, 2005. Class or Classes of Air Carriers Which previously provided to the Telluride ADDRESSES: Comments on this the Public Agency Has Requested Not Regional Airport, under § 158.23 of part application may be mailed or delivered Be Required To Collect PFCs: Non- 158. in triplicate to the FAA at the following Scheduled On-Demand Air Carriers FOR FURTHER INFORMATION CONTACT: Mr. address: Federal Aviation (formerly Air Taxi/Commercial Christopher Schaffer, (303) 342–1258; Administration, Airports Division, Operators) filing FAA Form 1800–31. Denver Airports District Office, DEN– 15000 Aviation Blvd., Lawndale, CA Any person may inspect the ADO; Federal Aviation Administration; 90261, or San Francisco Airports application in person at the FAA office 26805 E. 68th Avenue, Suite 224; District Office, 831 Mitten Road, Room listed above under FOR FURTHER Denver, Colorado 80249–6361. The 210, Burlingame, CA 94010–1303. In INFORMATION CONTACT and at the FAA application may be reviewed in person addition, one copy of any comments Regional Airports Division located at: at this same location. submitted to the FAA must be mailed or Federal Aviation Administration, SUPPLEMENTARY INFORMATION: The FAA delivered to Mr. Dominic T. Stuth, Airports Division, 15000 Aviation Blvd., proposes to rule and invites public Grants and Planning Administrator, Lawndale, CA 90261. In addition, any comment on the application 05–04–U– Monterey Peninsula Airport District, at person may, upon request, inspect the 00–TEX) to use PFC revenue at the the following address: 200 Fred Kane application, notice and other documents Telluride Regional Airport, under the Drive, Suite 200, Monterey, CA, 93940. germane to the application in person at provisions of 49 U.S.C. 40117 and part Air carriers and foreign air carriers may the Monterey Peninsula Airport District. 158 of the Federal Aviation Regulations submit copies of written comments (14 CFR part 158). Issued in Lawndale, California, on previously provided to the Monterey On December 10, 2004, the FAA December 10, 2004. Peninsula Airport District under section determined that the application to use a 158.23 of part 158. John P. Milligan, PFC submitted by the Telluride FOR FURTHER INFORMATION CONTACT: Supervisor, Programming Section, Western- Regional Airport Authority, was Joseph Rodriguez, Environmental Pacific Region. substantially complete within the Planning and Compliance Section [FR Doc. 04–27694 Filed 12–16–04; 8:45 am] requirements of § 158.25 of part 158. Supervisor, San Francisco Airports BILLING CODE 4901–13–M The FAA will approve or disapprove the
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application, in whole or in part, no later the Federal Aviation Regulations (14 Public Agency: Broome County than March 12, 2005. CFR part 158). This notice is published Department of Aviation, Binghamton, The following is a brief overview of pursuant toparagraph d of § 158.29. New York. the application. Application Number: 04–07–C–00– PFC Applications Approved Level of the Proposed PFC: $4.50. BGM. Actual Impose Only Charge—Effective Public Agency: Wayne County Airport Application Type: Impose and use a Date: April 1, 2002. Authority, Romulus, Michigan. PFC. Proposed Charge—Expiration Date: Application Number: 04–05–C–00– PFC Level: $4.50. December 31, 2007. DTW. Total PFC Revenue Approved in this Total Requested for Use Approval: Application Type: Impose and use a Decision: $237,624. $215,000. PFC. Earliest Charge Effective Date: August Brief Description of Proposed Project: PFC Level: $4.50. 1, 2005. Land acquisition. Total PFC Revenue Approved in this Estimated Charge Expiration Date: Class or Classes of Air Carrier That Decision: $440,790,156. February 1, 2006. Earliest Charge Effective Date: the Public Agency Has Requested Not be Class C-Air Carriers not required to September 1, 2029. Required To Collect PFC’s: Air taxi collect PFC’s: Non-scheduled/on- Estimated Charge Expiration Date: operators filing FAA Form 1800–31. demand air carriers filing FAA Form Any person may inspect the October 1, 2032. Class of Air Carriers not Required to 1800–31. application in person at the FAA office Collect PFC’s: All air carriers or foreign Determination: Approved. Based on listed above under FOR FURTHER air carriers which enplane fewer than information contained in the public INFORMATION CONTACT and at the FAA 500 passengers each per year. agency’s application, the FAA has Regional Airports Office located at: Determination: Approved. Based on determined that the approved class Federal Aviation Administration, information contained in the public accounts for less than 1 percent of the Northwest Mountain Region, Airports agency’s application, the FAA has total annual enplanements at Greater Division, ANM–600, 1601 Lind Avenue determined that the approved class Binghamton Airport. SW., Suite 315, Renton, WA 98055– accounts for less than 1 percent of the Brief Description of Projects Approved 4056. total annual enplanements at Detroit for Collection and Use: In addition, any person may, upon Metropolitan Wayne County Airport. Glycol collection system request, inspect the application, notice, Brief Description of Projects Approved rehabilitation. and other documents germane to the for Collection and Use at a $4.50 PFC Runway 10/28 safety area study. application in person at the Telluride Level: Airport wildlife hazard study. Regional Airport. North terminal apron. Taxiway rehabilitation—design. Issued in Renton, Washington on McNamara Terminal phase II Brief Description of Project Approved December 10, 2004. program. for Collection: Airport entrance road David A. Field, Third aircraft rescue and firefighting improvements. Manager, Planning, Programming and facility. Brief Description of Project Approved Capacity Branch, Northwest Mountain West airfield improvements. for Use: Runway 16/34 refurbishment, Region. Interconnect re-route. design/construction. [FR Doc. 04–27693 Filed 12–16–04; 8:45 am] Taxiway Q construction. Decision Date: September 29, 2004. BILLING CODE 4910–13–M Runway 4R/22L shoulders/ For Further Information Contact: overburden. Robert Levine, New York Airports Deicing pad at runway 22L. District Office, (516) 227–3807. DEPARTMENT OF TRANSPORTATION Deicing pads at runways 4R and 3L. Public Agency: Chemung County, Perimeter fencing and other security Elmira, New York. Federal Aviation Administration enhancements. Surface movement guidance control Application Number: 04–01–C–00– ELM. Notice of Passenger Facility Charge system. Application Type: Impose and use a (PFC) Approvals and Disapprovals Runway 3L/21R planning. Brief Description of Project Approved PFC. AGENCY: Federal Aviation for Collection and Use at a $3.00 PFC PFC Level: $3.00. Administration (FAA), DOT. Level: Runway 3R/21L design and Total PFC Revenue Approved in This ACTION: Monthly notice of PFC pavement evaluation. Decision: $791.873 approvals and disapprovals. In October Brief Description of Project Partially Earliest Charge Effective Date: 2004, there were four applications Approved for Collection and Use at a December 1, 2004. approved. This notice also includes $3.00 PFC Level: Part 150 study update. Estimated Charge Expiration Date: information on three applications, Determination: The approved amount January 1, 2008. approved in September 2004, is less than the amount requested due to Class of Air Carriers Not Required To inadvertently left off the September the issuance of an Airport Improvement Collect PFC’s: Non-scheduled/on- 2004 notice. Additionally, 27 approved Program grant for this project after the demand air carriers filing FAA Form amendments to previously approved FAA’s receipt of the PFC application. 1800–31. applications are listed. Brief Description of Withdrawn Determination: Approved. Based on Project: Airfield safety vehicles and information contained in the public SUMMARY: The FAA publishes a monthly equipment. agency’s application, the FAA has notice, as appropriate, of PFC approvals Date of Withdrawal: September 20, determined that the approved class and disapprovals under the provisions 2004. accounts for less than 1 percent of the of the Aviation Safety and Capacity Decision Date: September 28, 2004. total annual enplanements at Elmira/ Expansion Act of 1990 (Title IX of the For Further Information Contact: Corning Regional Airport. Omnibus Budget Reconciliation Act of Jason Watt, Detroit Airports District Brief Description of Projects Approved 1990) (Pub. L. 101–508) and part 158 of Office, (734) 229–2906. for Collection and Use:
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Purchase airport sweeper. Decision Date: October 8, 2004. Aircraft rescue and firefighting Rehabilitate and mark taxiway A, For Further Information Contact: training facility (burn pit). rehabilitate and mark terminal apron. Nicoletta S. Oliver, Central Region Noise mitigation. Security vulnerability assessment. Airports Division, (816) 329–2642. Airport security enhancements. Snow removal equipment building Public Agency: County of Milwaukee, Aircraft rescue and firefighting expansion. Milwaukee, Wisconsin. training facility (classroom). Purchase and install passenger Application Number: 04–11–U–00– Terminal roof replacement. boarding bridge. MKE. Runway safety area improvements. Hazard beacon (obstruction lights) Application Type: Use PFC revenue. PFC implementation and study. PFC Level: $3.00. administration. Rehabilitate and strengthen taxiways Total PFC Revenue To be Used in Terminal modernization program, C, G, and H. This Decision: $825,000. phase I. Construct itinerant aircraft apron. Charge Effective Date: March 1, 2017. Brief Description of Projects Approved Update/upgrade airport security Estimated Charge Expiration Date: for Collection at GSN, GRO, and TNI access control system. September 1, 2017. and Use at GRO: Environmental assessment for the Class of Air Carriers Not Required To Apron expansion. extension of runway 6 end. Collect PFC’s: No change from previous Air conditioning arrival area. Install security fence at Schweizer decision. Runway rehabilitation. property, T-hangar access area and Brief Description of Project Approved Airport visual guidance system. maintenance area. for Use: E concourse aircraft ramp. Environmental assessment for runway Airfield storm water drainage study, Decision Date: October 8, 2004. 9/27 extension. phase 1. For Further Information Contact: Brief Description of Project Approved Acquire multi-purpose snow removal Sandra E. DePottey, Minneapolis for Collection at GSN, GRO, and TNI for equipment. Airports District Office, (612) 713–4363. Future Use at GRO: Design and Master plan update. Public Agency: Commonwealth Ports Acquire aircraft rescue and construct runway 9/27 extension. Authority, Saipan, Northern Mariana Brief Description of Projects Approved firefighting command/friction survey Islands. vehicle. for Collection at GSN, GRO, and TNI Applications Number: 04–01–C–00– and Use at TNI: Brief Description of Projects Approved GSN; 04–01–C–00–GRO; and 04–01–C– for Collection: Rehabilitate taxiway D; New runway improvement. 00–TNI. Aircraft rescue and firefighting Runway end 6 extension, phase 1 Application Type: Impose and use a (design). vehicle. PFC. Decision Date: October 15, 2004. Brief Description of Disapproved PFC Level: $4.50. Project: Purchase multi-purpose snow For Further Information Contact: Total PFC Revenue Approved In This Gordon K. Wong, Honolulu Airports removal equipment. Decision: $33,442,548 ($29,920,680 at Determination: Disapproved. This District Office, (808) 541–3565. Francisco C. Ada/Saipan International Public Agency: Tri-State Airport project was not included in the airline Airport (GSN); $1,797,042 at Rota consultation process. Authority, Huntington, West Virginia. International Airport (GRO); and Application Number: 04–05–C–00– Decision Date: September 30, 2004. $1,724,826 at Tinian International For Further Information Contact: HTS. Airport (TNI)). Application Type: Impose and use a Philip Brito, New York Airports District Earliest Charge Effective Date at Each PFC. Office, (516) 227–3800. Airport: January 1, 2005. PFC Level: $3.00. Public Agency: City of Kansas City, Estimated Charge Expiration Date at Total PFC Revenue Approved in this Missouri. Each Airport: August 1, 2016. Decision: $436,233. Application Number: 04–04–C–00– Classes of Air Carriers Not Required Earliest Charge Effective Date: MCI. to Collect PFC’s: None. December 1, 2007. Application Type: Impose and use a Brief Description of Projects Approved Estimated Charge Expiration Date: PFC. for Collection At GSN, GRO, and TNI December 1, 2011. PFC Level: $3.00. and Use at GSN: Total PFC Revenue Approved in This Electrical upgrade/generator. Class of Air Carriers Not Required to Decision: $4,066,500. Conversion of restaurant to holdroom. Collect PFC’s: Non-scheduled/on- Earliest Charge Effective Date: Sewer line connection. demand air carriers filing FAA Form October 1, 2017. Enclosure and air conditioning of 1800–31. Estimated Charge Expiration Date: corridor. Determination: Approved. Based on December 1, 2017. Environmental assessment for information contained in the public Class of Air Carriers Not Required To hardstand and taxiways. agency’s application, the FAA has Collect PFC’s: Non-scheduled/on Connecting taxiway. determined that the approved class demand air carriers filing FAA Form Storm drainage master plan. accounts for less than 1 percent of the 1800–31. Parallel taxiway. total annual enplanements at Tri-State Determination: Approved. Based on Aircraft waste disposal. Airport. information contained in the public Perimeter fencing. Brief Description of Projects Approved agency’s application, the FAA has New aircraft rescue and firefighting for Collection and Use: determined that the approved class vehicle. Taxiway A rehabilitation. accounts for less than 1 percent of the Environmental assessment for Water system rehabilitation. total annual enplanements at Kansas taxiways. Acquire friction measuring City International Airport. Flight information display. equipment. Brief Description of Project Approved Radio communications upgrade. Aircraft rescue and firefighting for Collection and Use: Reconstruct Runway 7/25 rehabilitation—phases I building rehabilitation. runway 1/19. and II. Airfield drainage rehabilitation.
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PFC preparation. Air carrier apron rehabilitation. For Further Information Contact: Main terminal building renovations Brief Description of Project Approved Larry F. Clark, Beckley Airports District and loading bridge. for Collection: General aviation apron Office, (304) 252–6216. Relocate and replace rotating beacon. rehabilitation. Acquire snow removal equipment. Decision Date: October 18, 2004. Amendments to PFC Approvals
Amended ap- Amended esti- Amendment No. Amendment ap- Original approved proved net PFC Original estimated mated charge exp. City, State proved date net PFC revenue revenue charge exp. date date
99–02–C–02–MCI; Kansas City, MO .... 07/20/04 $23,844,977 $9,556,186 08/01/09 01/01/06 95–01–C–04–MCI; Kansas City, MO .... 07/22/04 215,381,098 300,111,676 01/01/08 07/01/13 94–01–C–02–SBN; South Bend, IN ...... 09/14/04 8,889,854 8,887,430 12/01/02 09/01/01 02–05–C–01–FLL; Fort Lauderdale, FL 09/22/04 26,533,770 29,460,819 03/01/11 02/01/12 92–01–C–03–GFK; Grand Forks, ND ... 09/29/04 663,847 621,965 08/01/96 09/01/95 96–03–C–01–GFK; Grand Forks, ND ... 09/29/04 86,463 58,141 08/01/96 12/01/95 97–04–C–02–GFK; Grand Forks, ND ... 09/29/04 551,993 522,970 09/01/98 11/01/98 02–06–C–01–DLH; Duluth, MN ...... 10/07/04 901,280 721,079 07/01/05 11/01/04 96–02–C–01–MOT; Minot, ND ...... 10/19/04 287,477 186,282 08/01/00 03/01/98 98–03–C–02–MOT; Minot, ND ...... 10/19/04 227,141 231,153 02/01/04 12/01/99 99–04–C–02–MOT; Minot, ND ...... 10/19/04 757,551 759,503 02/01/04 04/01/03 *97–11–C–02–CHO; Charlottesville, VA 10/19/04 205,900 205,900 12/01/04 02/01/07 *99–12–C–02–CHO; Charlottesville, VA 10/19/04 181,069 181,069 10/01/04 02/01/07 99–13–U–02–CHO; Charlottesville, VA 10/19/04 NA NA 10/01/04 02/01/07 *01–14–C–02–CHO; Charlottesville, VA 10/19/04 348,874 348,874 07/01/06 02/01/07 *3–15–C–01–CHO; Charlottesville, VA 10/19/04 850,000 850,000 01/01/08 02/01/07 94–01–C–03–RIC; Richmond, VA ...... 10/22/04 17,153,645 11,846,867 06/01/01 05/01/98 97–02–C–01–RIC; Richmond, VA ...... 10/22/04 3,978,514 4,325,673 08/01/01 07/01/99 99–03–C–02–RIC; Richmond, VA ...... 10/22/04 106,296,040 111,407,401 07/01/15 07/01/15 03–05–C–01–RIC; Richmond, VA ...... 10/22/04 6,032,887 6,032,887 05/01/25 05/01/25 *99–03–C–03–RIC; Richmond, VA ...... 10/22/04 111,407,401 111,407,401 07/01/15 10/01/19 *01–04–C–03–RIC; Richmond, VA ...... 10/22/04 3,900,333 3,900,333 09/01/16 10/01/19 *03–05–C–02–RIC; Richmond, VA ...... 10/22/04 6,032,887 6,032,333 05/01/25 10/01/19 00–03–C–01–AVP; Wilkes-Barre, PA .... 10/25/04 9,918,271 8,004,756 11/01/10 04/01/11 98–06–C–05–PHL; Philadelphia,PA ...... 10/25/04 23,060,410 23,560,410 03/01/08 03/01/08 01–09–C–01–PHL; Philadelphia, PA ..... 10/25/04 22,250,000 24,400,000 03/01/08 03/01/08 01–04–C–02–RIC; Richmond, VA ...... 10/29/04 3,900,333 3,401,433 10/01/19 11/01/16
Note: The amendments denoted by an (OMB) for review and approval. The Abstract: The Uniform Financial asterisk (*) include a change to the PFC level nature of the information collection is Reporting Requirements are used as a charged from $3.00 per enplaned passenger described as well as its expected basis for preparing and filing semi- to $4.50 per enplaned passenger. For burden. The Federal Register Notice annual and annual financial statements Charlottesville, VA and Richmond, VA, this change is effective on January 1, 2005. with a 60-day comment period soliciting with the Maritime Administration comments on the following collection of (MARAD). Regulations requiring Issued in Washington, DC on December 13, information was published on financial reports to MARAD are 2004. September 29, 2004. No comments were authorized by Section 801, Merchant Joseph G. Washington, received. Marine Act, 1936, as amended. Acting Manager, Financial Analysis and DATES: Comments must be submitted on Annual Estimated Burden Hours: Passenger Facility Charge Branch. or before January 18, 2005. 1862 hours. [FR Doc. 04–27689 Filed 12–16–04; 8:45 am] FOR FURTHER INFORMATION CONTACT: ADDRESSES: Send comments to the BILLING CODE 4910–13–M Frances Jerry, Maritime Administration, Office of Information and Regulatory 400 7th Street SW., Washington, DC Affairs, Office of Management and 20590. Telephone: 202–366–5861; FAX: Budget, 725 17th Street, NW., DEPARTMENT OF TRANSPORTATION 202–366–5980; or e-mail: Washington, DC 20503, Attention [email protected]. Copies of MARAD Desk Officer. Maritime Administration this collection also can be obtained from Comments are invited on: Whether Reports, Forms and Recordkeeping that office. the proposed collection of information Requirements; Agency Information SUPPLEMENTARY INFORMATION: Maritime is necessary for the proper performance Collection Activity Under OMB Review Administration (MARAD). of the functions of the agency, including Title: Uniform Financial Reporting whether the information will have AGENCY: Maritime Administration, DOT. Requirements. practical utility; the accuracy of the ACTION: Notice and request for OMB Control Number: 2133–0005. agency’s estimate of the burden of the comments. Type of Request: Extension of proposed information collection; ways currently approved collection. to enhance the quality, utility and SUMMARY: In compliance with the Affected Public: Vessel owners clarity of the information to be Paperwork Reduction Act of 1995 (44 acquiring ships from MARAD on credit, collected; and ways to minimize the U.S.C. 3501 seq.), this notice announces companies chartering ships from burden of the collection of information that the Information Collection MARAD, and companies having Title XI on respondents, including the use of abstracted below has been forwarded to guarantee obligations. automated collection techniques or the Office of Management and Budget Forms: MA–172. other forms of information technology.
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A comment to OMB is best assured of insure that the consumer can readily see ACTION: Request for comments. having its full effect if OMB receives it and understand the tire grades: (1) The within 30 days of publication. grades are molded into the sidewall of SUMMARY: Pursuant to 49 U.S.C. 13703(c), the Surface Transportation Authority: 49 CFR 1.66. the tire so that they can reviewed on both the new and old tires that are to be Board is instituting a proceeding to Issued in Washington, DC, on December replaced; (2) a paper label is affixed to conduct its periodic review of motor 10, 2004. the tread face of the new tires that carrier collective-activities agreements Joel C. Richard, provides the grades of that particular previously approved under 49 U.S.C. Secretary, Maritime Administration. tireline along with an explanation of the 13703. The Board is seeking comments [FR Doc. 04–27603 Filed 12–16–04; 8:45 am] grading system; (3) tire manufacturers from those motor carrier bureaus that BILLING CODE 4910–81–P provide dealers with brochures for wish to have Board approval for their public distribution listing the grades of collective-activities agreements all tirelines they offer for sale; (4) continued. The Board also is seeking DEPARTMENT OF TRANSPORTATION NHTSA compiles the grading comments from all interested persons information of all manufacturer’s on how those agreements, as ordered National Highway Traffic Safety tirelines into a booklet that is available conditioned by the Board, have been Administration to the public both in printed form and working. on the website. DATES: Reports, Forms and Record Keeping Opening comments may be filed Affected Public: All passenger car tire Requirements; Agency Information by the bureaus and any interested manufacturers and brand name owners Collection Activity Under OMB Review member of the public by February 15, offering passenger car tires for sale in 2005. Reply comments may be filed by AGENCY: National Highway Traffic the United States. March 17, 2005. Rebuttal comments Safety Administration, DOT. Estimated Total Annual Burden: may be filed by April 6, 2005. NHTSA estimates that 79,650 man- ACTION: Notice. ADDRESSES: Any filing submitted in this hours are required at a cost of proceeding must refer to STB Ex Parte SUMMARY: In compliance with the approximately $4 million to the tire No. 656 and must be submitted either Paperwork Reduction Act of 1995 (44 manufacturers to comply with this via the Board’s e-filing format or in the U.S.C. 3501 et seq.), this notice regulation. traditional paper format. Any person announces that the Information ADDRESSES: Send comments, within 30 using e-filing should comply with the Collection Request (ICR) abstracted days, to the Office of Information and instructions found on the Board’s below has been forwarded to the Office Regulatory Affairs, Office of http://www.stb.dot.gov Web site, at the of Management and Budget (OMB) for Management and Budget, 725 17th ‘‘E-FILING’’ link. Any person submitting review and comment. The ICR describes Street, NW., Washington, DC 20503, a filing in the traditional paper format the nature of the information collections Attention NHTSA Desk Officer. should send an original and 10 paper and their expected burden. The Federal Comments are invited on: Whether copies of the filing (and also an IBM- Register Notice with a 60-day comment the proposed collection of information compatible floppy disk with any textual period was published on July 29, 2004 is necessary for the proper performance submission in any version of either [69 FR 45370–45371]. of the functions of the Department, Microsoft Word or WordPerfect) to: including whether the information will DATES: Comments must be submitted on Surface Transportation Board, 1925 K or before January 18, 2005. have practical utility; the accuracy of Street, NW., Washington, DC 20423– the Departments estimate of the burden FOR FURTHER INFORMATION CONTACT: P.L. 0001. Because all comments will be of the proposed information collection; posted to the Board’s Web site, persons Moore at the National Highway Traffic ways to enhance the quality, utility and filing them with the Board need not Safety Administration, Office of clarity of the information to be serve them on other participants but International Policy, Fuel Economy and collected; and ways to minimize the must furnish a hard copy on request to Consumer Programs (NVS–131), 400 burden of the collection of information any participant. Seventh Street, SW., Room 5320, on respondents, including the use of Washington, DC 20590. Mr. Moore’s automated collection techniques or FOR FURTHER INFORMATION CONTACT: telephone number is (202) 366–5222. other forms of information technology. Joseph H. Dettmar, (202) 565–1609. SUPPLEMENTARY INFORMATION: A Comment to OMB is most effective [Federal Information Relay Service for if OMB receives it within 30 days of the hearing impaired: 1–800–877–8339.] National Highway Traffic Safety publication. SUPPLEMENTARY INFORMATION: Under 49 Administration U.S.C. 13703, the Board may authorize Issued in Washington, DC, on December 8, Title: 49 CFR Part 575.104; Uniform 2004. motor carriers (including motor carriers Tire Quality Grading Standard. Stephen R. Kratzke, of passengers and household goods) to OMB Number: 2127–0519. enter into ‘‘bureau’’ agreements for the Associate Administrator for Rulemaking. Type of Request: Extension of a collective establishment of rates, fares, currently approved information [FR Doc. 04–27683 Filed 12–16–04; 8:45 am] classifications, and certain ancillary collection. BILLING CODE 4910–59–P activities. Board authorization Abstract: Part 575 requires tire immunizes activities taken under the manufacturers and tire brand owners to DEPARTMENT OF TRANSPORTATION approved agreements from the antitrust submit reports to NHTSA regarding the laws. Under section 13703(c), the Board UTQGS grades of all passenger car tire Surface Transportation Board must, every 5 years, institute a lines they offer for sale in the United proceeding to review the motor carrier States. This information is used by [STB Ex Parte No. 656] bureau agreements previously approved consumers of passenger car tires to Motor Carrier Bureaus—Periodic under section 13703 and shall change compare tire quality in making their Review Proceeding the conditions of approval of an purchase decisions. The information is agreement or terminate it when provided in several different ways to AGENCY: Surface Transportation Board. necessary to protect the public interest.
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Under this provision, the Board must payment of rates.4 Information on railroads: Chicago Rail Link, LLC (CRL), now commence a review proceeding. whether these conditions are working as Georgia Woodlands Railroad, LLC The Board is hereby commencing the intended would be especially helpful. (GWRC), Great Western Railway of required statutory review proceeding. Board filings, decisions, and notices Colorado, LLC (GWR), Great Western Approvals of existing agreements will are available on its Web site at http:// Railway of Iowa, LLC (CBGR), continue in effect unless the Board www.stb.dot.gov. Manufacturers’ Junction Railway, LLC determines otherwise. This action will not significantly (MJ), Newburgh & South Shore Railroad Each bureau should, at a minimum, affect either the quality of the human Limited (NSR), Northern Ohio & file a statement with the Board environment or the conservation of Western Railway, LLC OW), Panhandle indicating whether it desires to continue energy resources. Northern Railroad, LLC (PNR), Alliance to have its collective-activities Decided: December 13, 2004. Terminal Railroad, LLC (ATR), and agreement approved by the Board. The By the Board, Chairman Nober, Vice Fulton County Railway, LLC (FCR).1 Board’s records indicate that approvals Chairman Mulvey, and Commissioner OmniTRAX also controls ATN, a for the agreements of the following Buttrey. Colorado Limited Liability Company ratemaking bureaus have expired for Vernon A. Williams, formed for the purpose of leasing and lack of timely compliance with the Secretary. operating certain rail lines owned by conditions on renewal imposed by the [FR Doc. 04–27629 Filed 12–16–04; 8:45 am] CSXT in the State of Alabama. Board during the prior review cycle: BILLING CODE 4915–01–P Applicants state that the purpose sought Machinery Haulers Association, Inc.; to be accomplished by the proposed Motor Carriers Traffic Association; transaction is to reduce overhead Nationwide Bulk Trucking Association, DEPARTMENT OF TRANSPORTATION expenses, and coordinate billing, Inc.; New England Motor Rate Bureau; maintenance, mechanical and personnel and Willamette Tariff Bureau, Inc.1 If Surface Transportation Board policies and practices of its rail carrier the Board’s records are incorrect in this [STB Finance Docket No. 34615] subsidiaries, and thereby improve the respect, each affected bureau must overall efficiency of rail service notify the Board. Patrick D. Broe and OmniTRAX, Inc.— provided by the 11 railroads.2 The Board also is particularly Continuance in Control Exemption— Applicants state that: (i) The rail lines interested in whether anything affecting being leased by ATN do not connect the public interest has changed since Alabama & Tennessee River Railway, LLC with any of the lines of the railroads the prior review cycle. In that review under their control or within their cycle, the Board approved the bureaus’ Patrick D. Broe (Mr. Broe) and corporate family, (ii) the transaction is applications for renewal of their OmniTRAX, Inc. (OmniTRAX), not a part of a series of anticipated agreements, subject to conditions.2 In noncarriers, have filed a verified notice transactions that would connect the rail particular, the Board required the of exemption to continue in control of lines being leased by ATN with any National Classification Committee to Alabama & Tennessee River Railway, railroad in the OmniTRAX corporate amend its agreement to provide: (1) LLC (ATN), upon ATN’s becoming a family, and (iii) the transaction does not Shippers with access to specified Class III rail carrier. involve a Class I railroad. Therefore, the additional information at an earlier The transaction is expected to be transaction is exempt from the prior stage in the classification process; (2) consummated on or shortly after approval requirements of 49 U.S.C. resolution of classification dockets by a December 31, 2004. 11323. See 49 CFR 1180.2(d)(2). single, expedited decision; and (3) the The transaction is related to STB Under 49 U.S.C. 10502(g), the Board right to seek an initial review of that Finance Docket No. 34611, Alabama & may not use its exemption authority to decision by a neutral arbitrator.3 The Tennessee River Railway, LLC—Lease relieve a rail carrier of its statutory Board required the ratemaking bureaus and Operation Exemption—CSX obligation to protect the interests of its to amend their agreements to provide Transportation, Inc., wherein ATN employees. Section 11326(c), however, for: (1) The furnishing of a ‘‘truth-in- seeks to lease from CSX Transportation, does not provide for labor protection for rates notice’’ when collective rates are Inc. (CSXT) and operate approximately transactions under sections 11324 and quoted; and (2) a prohibition of use of 122 miles of rail lines in Alabama as 11325 that involve only Class III rail a loss-of-discount penalty for late follows: (1) Between milepost SG 737.1 carriers. Accordingly, the Board may not of the Belt Connecting Track at impose labor protective conditions here, 1 In EC–MAC Motor Carriers Service Association, Birmingham and milepost 0AG 85.2 at Inc., et al., STB Section 5a Application No. 118 because all of the carriers involved are (Sub-No. 2), et al. (STB served Oct. 16, 2003), the Guntersville; and (2) the Ivalee Branch, Class III carriers. Board summarily approved the agreements of between milepost 0LE 443.0 near If the notice contains false or certain bureaus after noting their full compliance Moragne and milepost 0LE 447.9 at misleading information, the exemption with the required conditions, and, for other Moragne. bureaus, the Board listed the specific steps required is void ab initio. Petitions to revoke the for individual bureau compliance. Mr. Broe directly controls OmniTRAX exemption under 49 U.S.C. 10502(d) 2 The agreement of the National Bus Traffic that currently controls 10 Class III may be filed at any time. The filing of Association, Inc., was approved without conditions. a petition to revoke will not Application of the National Bus Traffic Association, 4 See EC–MAC Motor Carriers Service Inc., for Extended Approval of its Conformed Association, Inc., et al., STB Section 5a Application automatically stay the transaction. Agreement, Section 5a Application No. 9 No. 118 (Sub-No. 2), et al. (STB served Nov. 20, (Amendment No. 8) (STB served May 24, 2002). 2001, Mar. 27, 2003, and Oct. 16, 2003); Niagara 1 CRL’s and MJ’s lines are located in Illinois; The Household Goods Carriers’ Bureau Committee Frontier Tariff Bureau, Inc.—Agreement, STB GWRC’s line and FCR’s lines are located in Georgia; has been operating under its previously approved Section 5a Application No. 45 (Amendment No. 17) GWR’s lines are located in Colorado; CBGR’s lines agreement, and may continue to do so, until the (STB served Oct. 16, 2003); Middlewest Motor are located in Iowa; NOW’s line and NSR’s lines are Board rules on its application for renewal of that Freight Bureau, Inc.—Renewal of Agreement, STB located in Ohio; and PNR’s line and ATR’s lines are agreement. Section 5a Application No. 34 (Sub-No. 10) (STB located in Texas. 3 See National Classification Committee— served Jan. 21, 2004); and Pacific Inland Tariff 2 OmniTRAX indicates that it will soon file for Agreement, 3 S.T.B. 917 (1998), 4 S.T.B. 496 (2000), Bureau, Inc.—Renewal of Agreement, STB Section authority to control a new carrier, Kettle Falls and decisions served Nov. 20, 2001, Mar. 27, 2003, 5a Application No. 22 (Sub-No. 8) (STB served Jan. International Railway, LLC, that will be acquiring Oct. 16, 2003, and Dec. 10, 2003. 15, 2004). and leasing rail lines in the State of Washington.
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An original and 10 copies of all December 31, 2004 (which is 60 days or Comments: Comments should identify pleadings, referring to STB Finance more after ATN’s certification to the the OMB # 2138–0040. Persons wishing Docket No. 34615, must be filed with Board that it had complied with the the Department to acknowledge receipt the Surface Transportation Board, 1925 Board’s regulation at 49 CFR of their comments must submit with K Street, NW., Washington, DC 20423– 1150.32(e)). those comments a self-addressed 0001. In addition, a copy of each If the notice contains false or stamped postcard on which the pleading must be served on Karl Morell, misleading information, the exemption following statement is made: Comments Suite 225, 1455 F Street, NW., is void ab initio. Petitions to revoke the on OMB # 2138–0040. The postcard will Washington, DC 20005. exemption under 49 U.S.C. 10502(d) be date/time stamped and returned. Board decisions and notices are may be filed at any time. The filing of FOR FURTHER INFORMATION CONTACT: available on our Web site at http:// a petition to revoke will not Bernie Stankus Office of Airline WWW.STB.DOT.GOV. automatically stay the transaction. Information, K–14, Room 4125, Bureau Decided: December 9, 2004. An original and 10 copies of all of Transportation Statistics, 400 Seventh By the Board, David M. Konschnik, pleadings, referring to STB Finance Street, SW., Washington, DC 20590– Director, Office of Proceedings. Docket No. 34611, must be filed with 0001, (202) 366–4387. Vernon A. Williams, the Surface Transportation Board, 1925 SUPPLEMENTARY INFORMATION: OMB Secretary. K Street, NW., Washington, DC 20423– Approval No.: 2138–0040. 0001. In addition, one copy of each Title: Report of Traffic and Capacity [FR Doc. 04–27628 Filed 12–16–04; 8:45 am] pleading must be served on Karl Morell, Statistics—The T–100 System. BILLING CODE 4915–01–P Suite 225, 1455 F St., NW., Washington, Form No.: Schedules T–100 and T– DC 20005. 100(f). Type of Review: Extension of a DEPARTMENT OF TRANSPORTATION Board decisions and notices are available on our Web site at http:// currently approved collection. Surface Transportation Board WWW.STB.DOT.GOV. Respondents: Certificated, commuter and Foreign air carriers that operate to, [STB Finance Docket No. 34611] Decided: December 9, 2004. By the Board, David M. Konschnik, from or within the United States. Director, Office of Proceedings. Number of Respondents: 330. Alabama & Tennessee River Railway, Total Burden per Response: 6 hours. LLC—Lease and Operation Vernon A. Williams, Total Annual Burden: 24,180 hours. Exemption—CSX Transportation, Inc. Secretary. Needs and Uses: [FR Doc. 04–27627 Filed 12–16–04; 8:45 am] Alabama & Tennessee River Railway, Airport Improvement BILLING CODE 4910–01–P LLC (ATN), a noncarrier, has filed a The Federal Aviation Administration verified notice of exemption under 49 uses enplanement data for U.S. airports CFR 1150.31 to lease from CSX DEPARTMENT OF TRANSPORTATION to distribute the annual Airport Transportation, Inc. (CSXT) and operate Improvement Program (AIP) entitlement approximately 122 miles of rail lines in Bureau of Transportation Statistics funds to eligible primary airports, i.e., Alabama as follows: (1) Between airports which account for more than milepost SG 737.1 of the Belt Agency Information Collection; 0.01 percent of the total passengers Connecting Track at Birmingham and Activity Under OMB Review; Report of enplaned at U.S. airports. Enplanement milepost 0AG 85.2 at Guntersville; and Traffic and Capacity Statistics–The T– data contained in Schedule T–100/T– (2) the Ivalee Branch, between milepost 100 System 100(f) are the sole data base used by the 0LE 443.0 near Moragne and milepost AGENCY: Bureau of Transportation FAA in determining airport funding. 0LE 447.9 at Moragne. Statistics (BTS), DOT. U.S. airports receiving significant This transaction is related to STB service from foreign air carriers ACTION: Finance Docket No. 34615, Patrick D. Notice. operating small aircraft could be Broe and OmniTRAX, Inc.— SUMMARY: In compliance with the receiving less than their fair share of Continuance in Control Exemption— Paperwork Reduction Act of 1995, AIP entitlement funds. Collecting Alabama & Tennessee River Railway, Public Law 104–13, the Bureau of Schedule T–100(f) data for small aircraft LLC, wherein Patrick D. Broe and Transportation Statistics invites the operations will enable the FAA to more OmniTRAX, Inc., seek to continue in general public, industry and other fairly distribute these funds. control of ATN upon ATN’s becoming a governmental parties to comment on the Class III rail carrier. Air Carrier Safety continuing need for and usefulness of ATN certifies that its projected The FAA uses traffic, operational and DOT requiring U.S. and foreign air revenues as a result of this transaction capacity data as important safety carriers to file traffic and capacity data will not result in ATN becoming a Class indicators and to prepare the air carrier pursuant to 14 CFR 241.19 and part 217, II or Class I rail carrier. But, because traffic and operation forecasts that are respectively. These reports are used to ATN’s projected annual revenues will used in developing its budget and measure air transportation activity to, exceed $5 million, ATN certified to the staffing plans, facility and equipment from, and within the United States. Board on November 1, 2004, that, on funding levels, and environmental that date, it sent the required notice of DATES: Written comments should be impact and policy studies. The FAA the transaction to the national offices of submitted by February 15, 2005. monitor changes in the number of air all labor unions representing employees ADDRESSES: Comments should be carrier operations as a way to allocate on the affected lines and posted a copy directed to: Office of Airline inspection resources and in making of the notice at the workplace of the Information, K–14, Room 4125, Bureau decisions as to increased safety employees on the affected lines. See 49 of Transportation Statistics, 400 Seventh surveillance. Similarly, airport activity CFR 1150.32(e). Street, SW., Washington, DC 20590– statistics are used by the FAA to The transaction is expected to be 0001, fax no. 366–3383 or e-mail develop airport profiles and establish consummated on or shortly after [email protected]. priorities for airport inspections.
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Acquisitions and Mergers essential. These data must be timely and State metropolitan and regional aviation While the Justice Department has the inclusive to be relevant for analyzing authorities to fund needed airport primary responsibility over air carrier emerging issues and must be based systems planning work. Individual acquisitions and mergers, the upon uniform and reliable data airport activity statistics, nonstop Department reviews the transfer of submissions that are consistent with the market data, and service segment data international routes involved to Department’s regulatory requirements. are used to prepare airport activity level forecasts. determine if they would substantially International Negotiations and Routes reduce competition, or determine if the Many air services between the United Review of IATA Agreements transaction would be inconsistent with the public interest. In making these States and foreign countries are The Department reviews all of the determinations, the proposed governed by bilateral agreements. International Air Transport Association transaction’s effect on competition in Evaluations of existing bilateral (IATA) agreements that relate to fares, the markets served by the affected air agreements and proposed changes to rates, and rules for international air carriers is analyzed. This analysis such agreements are based on a transportation to ensure that the includes, among other thinks, a determination of the traffic and agreements meet the public interest consideration of the volume of traffic revenues between the United States and criteria. Current and historic summary and available capacity, the flight foreign countries for scheduled traffic and capacity data, such as segments and origins-destinations passenger and cargo flights as well as revenue ton-miles and available ton- involved, and the existence of entry charter services. In order to determine miles, by aircraft type, type of service, barriers, such as limited airport slots or conditions of reciprocity and overall and length of haul are needed to gate capacity. Also included is a review balance of trade, DOT conducts similar conduct these analyses: to (1) Develop of the volume of traffic handled by each analyses for countries with which the the volume elements for passenger/ air carrier at specific airports and in United States does not have bilateral cargo cost allocations, (2) evaluate specific markets which would be aviation agreements. Information used fluctuations in volume of scheduled and affected by the proposed acquisition or in these analyses includes traffic charter services, (3) assess the merger. The Justice Department uses T– volume by countries and by city-pairs competitive impact of different 100 data in carrying out its for passenger and cargo services and the operations such as charter versus responsibilities relating to airline corresponding traffic yields. Load scheduled, (4) calculate load factors by competition and consolidation. factors, aircraft seating configurations, aircraft type, and (5) monitor traffic in cargo capacities and aircraft unit cost specific markets. Traffic Forecasting are also used in the analyses. In limited Foreign Air Carriers Applications The FAA uses traffic, operational and entry markets, the competing air carriers capacity data as important safety are required to submit an operating Foreign air carriers are required to indicators and to prepare the air carrier plan. To analyze these plans, the submit applications for authority to traffic and operation forecasts. These Department uses current and historical operate to the United States. In forecast as used by the FAA, airport traffic and capacity data to determine reviewing these applications the managers, the airlines and others in the the reliability of the applicants’ Department must find that the requested air travel industry as planning and forecasts and to evaluate applicants’ authority is encompassed in a bilateral budgeting tools. competing fare and service proposals. agreement, other intergovernmental understanding, or that granting the Airport Capacity Analysis Mail Rates application is in the public interest. In The mix of aircraft type are used in The Department is responsible for the latter cases, T–100 data are used in determining the practical annual establishing international and intra- assessing the level of benefits that capacity (PANCAP) at airports as Alaska mail rates. International mail carriers of the applicant’s homeland prescribed in the FAA Advisory rates are set based on scheduled presently are receiving from their U.S. Circular Airport Capacity Criteria Used operations in four geographic areas: operations. These benefits are compared in Preparing the National Airport Plan. Trans-border, Latin America, operations and balanced against the benefits U.S. The PANCAP is a safety-related measure over the Atlantic Ocean and operations carriers receive from their operations to of the annual airport capacity or level of over the Pacific Ocean. Separate rates the applicant’s homeland. operations. It is a predictive measure are set for mainline and bush Alaskan Air Carrier Fitness which indicates potential capacity operations. The rates are updated every problems, delays, and possible airport six months to reflect changes in unit The Department determines whether expansions or runway construction costs in each rate-making entity. Traffic U.S. air carriers are and continue to be needs. If the level of operations at an and capacity data are used in fit, willing and able to conduct air airport exceeds PANCAP significantly, conjunction with cost data to develop service operations without undue risk to the frequency and length of delays will the required unit cost data. passengers and shippers. The increase, with a potential concurrent Department monitors a carrier’s load risk of accidents. Under this program, Essential Air Service factor, operational, and enplanement the FAA develops ways of increasing The Department reassesses service data to compare with other carriers with airport capacity at congested airports. levels at small domestic communities to similar operating characteristics. assure that capacity level are adequate Carriers that expand operations are a Airline Industry Status Evaluations to accommodate current demand. high rate are monitored more closely for The Department apprises Congress, safety reasons. the Administration and others of the System Planning at Airports effect that major changes or innovations The FAA is charged with International Civil Aviation are having on the air transportation administering a series of grants that are Organization industry. For this purpose, summary designed to accomplish the necessary Pursuant to an international traffic and capacity data as well as the airport planning for future development agreement, the United States is detailed segment and market data are and growth. These grants are made to obligated to report certain air carrier
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data to the International Civil Aviation ADDRESSES: Comments should be Carrier Fitness Organization (ICAO). The traffic data directed to: Office of Airline Fitness determinations are made for supplied to ICAO are extracted from the Information, K–14, Room 4125, Bureau both new entrants and established U.S. U.S. air carriers’ Schedule T–100 of Transportation Statistics, 400 Seventh domestic carriers proposing a submissions. Street, SW., Washington, DC 20590– substantial change in operations. A The Confidential Information 0001, fax no. 366–3383 or e-mail portion of these applications consists of Protection and Statistical Efficiency Act [email protected]. an operating plan for the first year (14 of 2002 (44 U.S.C. 3501 note), requires Comments: Comments should identify CFR part 204) and an associated a statistical agency to clearly identify the OMB #2138–0009. Persons wishing projection of revenues and expenses. information it collects for non-statistical the Department to acknowledge receipt The carrier’s operating costs, included purposes. BTS hereby notifies the of their comments must submit with in these projections, are compared respondents and the public that BTS those comments a self-addressed against the cost data in Form 298–C for uses the information it collects under stamped postcard on which the a carrier or carriers with the same this OMB approval for non-statistical following statement is made: Comments aircraft type and similar operating purposes including, but not limited to, on OMB #2138–0009. The postcard will characteristics. Such a review validates publication of both Respondent’s be date/time stamped and returned. the reasonableness of the carrier’s identity and its data, submission of the FOR FURTHER INFORMATION CONTACT: operating plan. information to agencies outside BTS for Bernie Stankus, Office of Airline The quarterly financial submissions review, analysis and possible use in Information, K–14, Room 4125, Bureau by commuter and small certificated air regulatory and other administrative of Transportation Statistics, 400 Seventh carriers are used in determining each matters. Street, SW., Washington, DC 20590– carrier’s continuing fitness to operate. Donald W. Bright, 0001, (202) 366–4387. Section 41738 of Title 49 of the United Assistant Director, Airline Information. SUPPLEMENTARY INFORMATION: OMB States Code requires DOT to find all [FR Doc. 04–27588 Filed 12–16–04; 8:45 am] Approval No: 2138–0009. commuter and small certificated air carriers fit, willing, and able to conduct BILLING CODE 4910–FE–P Title: Report of Financial and Operating Statistics for Small Aircraft passenger service as a prerequisite to Operators. providing such service to an eligible DEPARTMENT OF TRANSPORTATION Form No.: BTS Form 298–C. essential air service point. In making a fitness determination, DOT reviews Type of Review: Extension of a Bureau of Transportation Statistics three areas of a carrier’s operation: (1) currently approved collection for the The qualifications of its management financial data. Agency Information Collection; team, (2) its disposition to comply with Activity Under OMB Review; Report of Respondents: Small certificated and laws and regulations, and (3) its Financial and Operating Statistics for commuter air carriers. financial posture. DOT must determine Small Aircraft Operators Number of Respondents: 80. whether or not a carrier has sufficient Estimated Time per Response: 4 hours financial resources to conduct its AGENCY: Bureau of Transportation per commuter carrier, 12 hours per operations without imposing undue risk Statistics (BTS), DOT. small certificated carrier. on the traveling public. Moreover, once ACTION: Notice. Total Annual Burden: 1,600 hours. a carrier begins conducting flight Needs and Uses: Program uses for operations, DOT is required to monitor SUMMARY: In compliance with the Form 298–C financial data are as Paperwork Reduction Act of 1995, its continuing fitness. follows: Senior DOT officials must be kept Public Law 104–13, the Bureau of fully informed and advised of all Transportation Statistics invites the Mail Rates current and developing economic issues general public, industry and other The Department of Transportation affecting the airline industry. In governmental parties to comment on the sets and updates the Intra-Alaska Bush preparing financial condition reports or continuing need for and usefulness of mail rates based on carrier aircraft status reports on a particular airline, BTS collecting financial, traffic and operating expense, traffic, and financial and traffic data are analyzed. operating statistics from small operational data. Form 298–C cost data, Briefing papers prepared for senior DOT certificated and commuter air carriers. especially fuel costs, terminal expenses, officials may use the same information. Small certificated air carriers (operate and line haul expenses are used in aircraft with 60 seats or less or with arriving at rate levels. DOT revises the Air Transportation Safety and System 18,000 pounds of payload capacity or established rates based on the Stabilization Act less) currently must file the two percentage of unit cost changes in the DOT is using financial data reported quarterly schedules listed below: carriers’ operations. These updating by small certificated and commuter air F–1 Report of Financial Data, procedures have resulted in the carriers carriers to establish benchmarks to F–2 Report of Aircraft Operating receiving rates of compensation that assess the reasonableness of air carrier Expenses and Related Statistics, more closely parallel their costs of claims under the Stabilization Act. and Commuter air carriers must file providing mail service and contribute to The Confidential Information the Schedule F–1 Report of the carriers’ economic well-being. Protection and Statistical Efficiency Act Financial Data. of 2002 (44 U.S.C. 3501 note), requires Essential Air Service Commenters should address whether a statistical agency to clearly identify BTS accurately estimated the reporting DOT often has to select a carrier to information it collects for non-statistical burden and if there are other ways to provide a community’s essential air purposes. BTS hereby notifies the enhance the quality, utility, and clarity service. The selection criteria include respondents and the public that BTS of the information collected. historic presence in the community, uses the information it collects under DATES: Written comments should be reliability of service, financial stability this OMB approval for non-statistical submitted by February 15, 2005. and cost structure of the air carrier. purposes including, but not limited to,
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publication of both Respondent’s Information, K–14, Room 4125, Bureau DEPARTMENT OF TRANSPORTATION identity and its data, submission of the of Transportation Statistics, 400 Seventh information to agencies outside BTS for Street, SW., Washington, DC 20590– Bureau of Transportation Statistics review, analysis and possible use in 0001, (202) 366–4387. regulatory and other administrative Agency Information Collection; matters. SUPPLEMENTARY INFORMATION: Activity Under OMB Review; Reporting OMB Approval No.: 2138–0004. Required for International Civil Donald W. Bright, Aviation Organization (ICAO) Assistant Director, Airline Information, Title: Submission of Audit Reports— Bureau of Transportation Statistics. Part 248. AGENCY: Bureau of Transportation [FR Doc. 04–27589 Filed 12–16–04; 8:45 am] Form No.: None. Statistics (BTS), DOT. BILLING CODE 4910–FE–P ACTION: Type Of Review: Extension of a Notice. currently approved collection. SUMMARY: In compliance with the DEPARTMENT OF TRANSPORTATION Respondents: Large certificated air Paperwork Reduction Act of 1995, carriers. Public Law 104–13, the Bureau of Bureau of Transportation Statistics Number of Respondents: 84. Transportation Statistics invites the general public, industry and other Agency Information Collection; Number of Responses: 84. governmental parties to comment on the Activity Under OMB Review; Total Annual Burden: 21 hours. continuing need and usefulness of BTS Submission of Audit Reports—Part 248 Needs and Uses: BTS collects collecting supplemental data for the AGENCY: Bureau of Transportation independent audited financial reports International Civil Aviation Statistics (BTS), DOT. from U.S. certificated air carriers. Organization (ICAO). Comments are requested concerning whether the ACTION: Notice. Carriers not having an annual audit supplemental reports are needed by BTS must file a statement that no such audit SUMMARY: In compliance with the to fulfill the United States treaty Paperwork Reduction Act of 1995, has been performed. In lieu of the audit obligation of furnishing financial and Public Law 104–13, the Bureau of report, BTS will accept the annual traffic reports to ICAO; BTS accurately Transportation Statistics invites the report submitted to the stockholders. estimated the reporting burden; there general public, industry and other The audited reports are needed by the are other ways to enhance the quality, governmental parties to comment on the Department of Transportation as (1) a utility and clarity of the information continuing need for and usefulness of means to monitor an air carrier’s collected; and there are ways to BTS requiring U.S. large certificated air continuing fitness to operate, (2) minimize reporting burden, including carriers to submit a true and complete reference material used by analysts in the use of automated collection of its annual audit that is made by an examining foreign route cases (3) techniques or other forms of information independent public accountant. If a reference material used by analyst in technology. carrier does not have an annual audit, examining proposed mergers, DATES: Written comments should be the carrier must file a statement that no acquisitions and consolidations, (4) a submitted by February 15, 2005. audit has been performed. Comments means whereby BTS sends a copy of the ADDRESSES: Comments should be are requested concerning whether the report to the International Civil Aviation audit reports are needed by BTS and directed to: Office of Airline Organization (ICAO) in fulfillment of a Information, K–14, Room 4125, Bureau DOT; BTS accurately estimated the United States treaty obligation, and (5) reporting burden; there are other ways of Transportation Statistics, 400 Seventh corroboration of a carrier’s Form 41 to enhance the quality, utility and Street, SW., Washington, DC 20590– filings. clarity of the information collected; and 0001, FAX NO. 366–3383 or EMAIL there are ways to minimize reporting The Confidential Information [email protected]. burden, including the use of automated Protection and Statistical Efficiency Act Comments: Comments should identify collection techniques or other forms of of 2002 (44 U.S.C. 3501 note), requires the OMB # 2138–0039. Persons wishing information technology. a statistical agency to clearly identify the Department to acknowledge receipt DATES: Written comments should be information it collects for non-statistical of their comments must submit with submitted by February 15, 2005. purposes. BTS hereby notifies the those comments a self-addressed stamped postcard on which the ADDRESSES: Comments should be respondents and the public that BTS directed to: Office of Airline uses the information it collects under following statement is made: Comments Information, K–14, Room 4125, Bureau this OMB approval for non-statistical on OMB # 2138–0039. The postcard will be date/time stamped and returned. of Transportation Statistics, 400 Seventh purposes including, but not limited to, Street, SW., Washington, DC 20590– publication of both Respondent’s FOR FURTHER INFORMATION CONTACT: 0001, fax no. 366–3383 or e-mail identity and its data, submission of the Bernie Stankus, Office of Airline [email protected]. information to agencies outside BTS for Information, K–14, Room 4125, Bureau Comments: Comments should identify review, analysis and possible use in of Transportation Statistics, 400 Seventh Street, SW., Washington, DC 20590– the OMB # 2138–0004. Persons wishing regulatory and other administrative 0001, (202) 366–4387. the Department to acknowledge receipt matters. of their comments must submit with SUPPLEMENTARY INFORMATION: those comments a self-addressed Donald W. Bright, OMB Approval No.: 2138–0039. stamped postcard on which the Assistant Director, Airline Information, Title: Reporting Required for following statement is made: Comments Bureau of Transportation Statistics. International Civil Aviation on OMB # 2138–0004. The postcard will [FR Doc. 04–27590 Filed 12–16–04; 8:45 am] Organization (ICAO). be date/time stamped and returned. BILLING CODE 4910–FE–P Form No.: BTS Form EF. FOR FURTHER INFORMATION CONTACT: Type Of Review: Extension of a Bernie Stankus Office of Airline currently approved collection.
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Respondents: Large certificated air minimize reporting burden, including States is obligated to provide the carriers. the use of automated collection International Civil Aviation Number of Respondents: 40. techniques or other forms of information Organization with financial and Number of Responses: 40. technology. statistical data on operations of U.S. air Total Annual Burden: 26 hours. DATES: Written comments should be carriers. Over 99 percent of the data Needs and Uses: As a party to the submitted by February 15, 2005. filed with ICAO is extracted from the Convention on International Civil ADDRESSES: carriers’ Form 41 reports. Aviation (Treaty), the United States is Comments should be obligated to provide ICAO with directed to: Office of Airline Standard Foreign Fare and Rate Levels financial and statistical data on Information, K–14, Room 4125, Bureau DOT uses Form 41 cost data to operations of U.S. carriers. Over 99% of of Transportation Statistics, 400 Seventh calculate the Standard Foreign Fare the data filled with ICAO is extracted Street, SW., Washington, DC 20590– Level (SFFL) for passengers and the from the air carriers’ Form 41 0001, FAX NO. (202) 366–3383 or Standard Foreign Rate Level (SFRL) for submissions to BTS. BTS Form EF is the EMAIL [email protected]. freight. Any international fare or rate set means by which BTS supplies the Comments: Comments should identify below this fare level are automatically remaining 1% of the air carrier data to the OMB # 2138–0013. Persons wishing approved. Separate passenger fare and ICAO. the Department to acknowledge receipt rate levels are established for Canadian, The Confidential Information of their comments must submit with Atlantic, Latin America, and Pacific Protection and Statistical Efficiency Act those comments a self-addressed areas. In markets where liberal bilateral of 2002 (44 U.S.C. 3501 note), requires stamped postcard on which the or multilateral pricing agreements a statistical agency to clearly identify following statement is made: Comments provide for more competitive open information it collects for non-statistical on OMB # 2138–0013. The postcard will market pricing, such agreements may purposes. BTS hereby notifies the be date/time stamped and returned. take precedence over the SFFL and respondents and the public that BTS FOR FURTHER INFORMATION CONTACT: SFRL. Bernie Stankus, Office of Airline uses the information it collects under Carrier Fitness this OMB approval for non-statistical Information, K–14, Room 4125, Bureau purposes including, but not limited to, of Transportation Statistics, 400 Seventh Fitness determinations are made for publication of both Respondent’s Street, SW., Washington, DC 20590– both new entrants and established U.S. identity and its data, submission of the 0001, (202) 366–4387. domestic carriers proposing a information to agencies outside BTS for SUPPLEMENTARY INFORMATION: substantial change in operations. A review, analysis and possible use in OMB Approval No.: 2138–0013. portion of these applications consists of regulatory and other administrative Title: Report of Financial and an operating plan for the first year (14 matters. Operating Statistics for Large CFR part 204) and an associated Certificated Air Carriers. projection of revenues and expenses. Donald W. Bright, Form No.: BTS Form 41. The carrier’s operating costs, included Assistant Director, Airline Information, Type Of Review: Extension of a in these projections, are compared Bureau of Transportation Statistics. currently approved collection. against the cost data in Form 41 for a [FR Doc. 04–27593 Filed 12–16–04; 8:45 am] Respondents: Large certificated air carrier or carriers with the same aircraft BILLING CODE 4910–FE–P carriers. type and similar operating Number of Respondents: 84. characteristics. Such a review validates Estimated Time per Response: 4 hours the reasonableness of the carrier’s DEPARTMENT OF TRANSPORTATION per schedule, an average carrier may operating plan. submit 90 schedules in one year. Form 41 reports, particularly balance Bureau of Transportation Statistics Total Annual Burden: 27,000 hours. sheet reports and cash flow statements play a major role in the identification of Agency Information Collection; Needs and Uses: Program uses for vulnerable carriers. Data comparisons Activity Under OMB Review; Report of Form 41 data are as follows: are made between current and past Financial and Operating Statistics for Mail Rates periods in order to assess the current Large Certificated Air Carriers The Department of Transportation financial position of the carrier. AGENCY: Bureau of Transportation sets and updates the international and Financial trend lines are extended into Statistics (BTS), DOT. mainline Alaska mail rates based on the future to analyze the continued ACTION: Notice. carrier aircraft operating expense, traffic viability of the carrier. DOT reviews and operational data. Form 41 cost data, three areas of a carrier’s operation: (1) SUMMARY: In compliance with the especially fuel costs, terminal expenses, The qualifications of its management Paperwork Reduction Act of 1995, and line haul expenses are used in team, (2) its disposition to comply with Public Law 104–13, the Bureau of arriving at rate levels. DOT revises the laws and regulations, and (3) its Transportation Statistics invites the established rates based on the financial posture. DOT must determine general public, industry and other percentage of unit cost changes in the whether or not a carrier has sufficient governmental parties to comment on the carriers’ operations. These updating financial resources to conduct its continuing need for and usefulness of procedures have resulted in the carriers operations without imposing undue risk the BTS Form 41. Comments are receiving rates of compensation that on the traveling public. Moreover, once requested concerning whether the more closely parallel their costs of a carrier is operating, DOT is required continuation of Form 41 is necessary for providing mail service and contribute to to monitor its continuing fitness. DOT to carry out its mission of the carriers’ economic well-being. Senior DOT officials must be kept promoting air transportation; BTS fully informed as to all current and accurately estimated the reporting Submission of U.S. Carrier Data to developing economic issues affecting burden; there are other ways to enhance ICAO the airline industry. In preparing the quality, use and clarity of the data As a party to the Convention on financial conditions reports or status collected; and there are ways to International Civil Aviation, the United reports on a particular airline, financial
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and traffic data are analyzed. Briefing ACTION: Notice and request for in the administration of any internal papers may use the same information. comments. revenue law. Generally, tax returns and The Confidential Information tax return information are confidential, Protection and Statistical Efficiency Act SUMMARY: The Department of the as required by 26 U.S.C. 6103. of 2002 (44 U.S.C. 3501 note), requires Treasury, as part of its continuing effort Request for Comments: Comments a statistical agency to clearly identify to reduce paperwork and respondent submitted in response to this notice will information it collects for non-statistical burden, invites the general public and be summarized and/or included in the purposes. BTS hereby notifies the other Federal agencies to take this request for OMB approval. All respondents and the public that BTS opportunity to comment on proposed comments will become a matter of uses the information it collects under and/or continuing information public record. this OMB approval for non-statistical collections, as required by the Comments are invited on: (a) Whether purposes including, but not limited to, Paperwork Reduction Act of 1995, the collection of information is publication of both Respondent’s Public Law 104–13 (44 U.S.C. necessary for the proper performance of identity and its data, submission of the 3506(c)(2)(A)). Currently, the IRS is the functions of the agency, including information to agencies outside BTS for soliciting comments concerning Form whether the information shall have review, analysis and possible use in 8893, Election of Partnership Level Tax practical utility; (b) the accuracy of the regulatory and other administrative Treatment. agency’s estimate of the burden of the matters. DATES: Written comments should be collection of information; (c) ways to received on or before February 15, 2005, Donald W. Bright, enhance the quality, utility, and clarity to be assured of consideration. of the information to be collected; (d) Assistant Director, Airline Information, Bureau of Transportation Statistics. ADDRESSES: Direct all written comments ways to minimize the burden of the to R. Joseph Durbala, Internal Revenue collection of information on [FR Doc. 04–27594 Filed 12–16–04; 8:45 am] Service, Room 6516, 1111 Constitution respondents, including through the use BILLING CODE 4910–FE–P Avenue NW., Washington, DC 20224. of automated collection techniques or FOR FURTHER INFORMATION CONTACT: other forms of information technology; and (e) estimates of capital or start-up DEPARTMENT OF THE TREASURY Requests for additional information or copies of the form and instructions costs and costs of operation, Office of the Secretary should be directed to Carol Savage at maintenance, and purchase of services Internal Revenue Service, Room 6516, to provide information. List of Countries Requiring 1111 Constitution Avenue NW., Approved: December 13, 2004. Cooperation With an International Washington, DC 20224, or at (202) 622– R. Joseph Durbala, Boycott 3945, or through the Internet at IRS Reports Clearance Officer. [email protected]. In order to comply with the mandate [FR Doc. 04–27680 Filed 12–16–04; 8:45 am] of section 999(a)(3) of the Internal SUPPLEMENTARY INFORMATION: Title: BILLING CODE 4830–01–P Revenue Code of 1986, the Department Election of Partnership Level Tax of the Treasury is publishing a current Treatment. list of countries which may require OMB Number: 1545–1912. DEPARTMENT OF THE TREASURY participation in, or cooperation with, an Form Number: 8893. international boycott (within the Abstract: IRC section 6231(a)(1)(B)(ii) Internal Revenue Service meaning of section 999(b)(3) of the allows small partnerships to elect to be treated under the unified audit and Proposed Collection; Comment Internal Revenue Code of 1986). Request for Form 1099–Q On the basis of the best information litigation procedure. Form 8893 will currently available to the Department of allow IRS to better track these elections AGENCY: Internal Revenue Service (IRS), the Treasury, the following countries by providing a standardized format for Treasury. may require participation in, or this election. Current Actions: There are no changes ACTION: Notice and request for cooperation with, an international comments. boycott (within the meaning of section being made to the form at this time. 999(b)(3) of the Internal Revenue Code Type of Review: Extension of a SUMMARY: The Department of the of 1986): Bahrain, Kuwait, Lebanon, currently approved collection. Treasury, as part of its continuing effort Libya, Oman, Qatar, Saudi Arabia, Affected Public: Business or other for- to reduce paperwork and respondent Syria, United Arab Emirates, and profit organizations. burden, invites the general public and Yemen, Republic of. Estimated Number of Respondents: other Federal agencies to take this 100. opportunity to comment on proposed Dated: December 13, 2004. Estimated Time Per Respondent: 1 and/or continuing information Barbara Angus, hour, 27 minutes. collections, as required by the International Tax Counsel (Tax Policy). Estimated Total Annual Burden Paperwork Reduction Act of 1995, [FR Doc. 04–27631 Filed 12–16–04; 8:45 am] Hours: 227. Public Law 104–13 (44 U.S.C. BILLING CODE 4810–25–M The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is of the collections of information covered soliciting comments concerning Form by this notice: DEPARTMENT OF THE TREASURY An agency may not conduct or 1099-Q, Payments From Qualified sponsor, and a person is not required to Education Programs (Under Sections Internal Revenue Service respond to, a collection of information 529 and 530). unless the collection of information DATES: Written comments should be Proposed Collection; Comment received on or before February 15, 2005, Request for Form 8893 displays a valid OMB control number. Books or records relating to a collection to be assured of consideration. AGENCY: Internal Revenue Service (IRS), of information must be retained as long ADDRESSES: Direct all written comments Treasury. as their contents may become material to R. Joseph Durbala, Internal Revenue
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Service, Room 6516, 1111 Constitution collection of information on a nine-digit number issued by the IRS to Avenue NW., Washington, DC 20224. respondents, including through the use individuals who are required to have a FOR FURTHER INFORMATION CONTACT: of automated collection techniques or U.S. taxpayer identification number but Requests for additional information or other forms of information technology; who do not have, and are not eligible to copies of the form(s) and instructions and (e) estimates of capital or start-up obtain, a social security number. ITINs should be directed to R. Joseph Durbala, costs and costs of operation, are intended for tax use only. (202) 622–3634, Internal Revenue maintenance, and purchase of services Current Actions: There are no changes Service, Room 6516, 1111 Constitution to provide information. being made to the form at this time. Avenue, NW., Washington, DC 20224, Approved: December 13, 2004. Type of Review: Extension of a or through the Internet at R. Joseph Durbala, currently approved collection. [email protected]. IRS Reports Clearance Officer. Affected Public: Individuals or SUPPLEMENTARY INFORMATION: Title: [FR Doc. 04–27681 Filed 12–16–04; 8:45 am] households. Payments From Qualified Education BILLING CODE 4830–01–P Estimated Number of Respondents: Programs (Under Sections 529 and 530). 500,000. OMB Number: 1545–1760. Estimated Time Per Respondent: 1 Form Number: 1099–Q. DEPARTMENT OF THE TREASURY Hour, 26 minutes. Abstract: Form 1099–Q is used to Estimated Total Annual Burden Internal Revenue Service report distributions from private and Hours: 715,000. state qualified tuition programs as The following paragraph applies to all required under Internal Revenue Code Proposed Collection; Comment of the collections of information covered sections 529 and 530. Request for Form W–7 Current Actions: There are no changes by this notice: AGENCY: Internal Revenue Service (IRS), An agency may not conduct or being made to the form at this time. Treasury. Type of Review: Extension of a sponsor, and a person is not required to ACTION: Notice and request for currently approved collection. respond to, a collection of information comments. Affected Public: Business or other for- unless the collection of information displays a valid OMB control number. profit organizations. SUMMARY: The Department of the Estimated Number of Respondents: Treasury, as part of its continuing effort Books or records relating to a collection 150. to reduce paperwork and respondent of information must be retained as long Estimated Time Per Respondent: 230 burden, invites the general public and as their contents may become material hours. other Federal agencies to take this in the administration of any internal Estimated Total Annual Burden opportunity to comment on proposed revenue law. Generally, tax returns and Hours: 34,500. and/or continuing information tax return information are confidential, The following paragraph applies to all collections, as required by the as required by 26 U.S.C. 6103. of the collections of information covered Paperwork Reduction Act of 1995, Request for Comments: Comments by this notice: Public Law 104–13(44 U.S.C. submitted in response to this notice will An agency may not conduct or 3506(c)(2)(A)). Currently, the IRS is be summarized and/or included in the sponsor, and a person is not required to soliciting comments concerning Form request for OMB approval. All respond to, a collection of information W–7, Application for IRS Individual comments will become a matter of unless the collection of information Taxpayer Identification Number. public record. displays a valid OMB control number. DATES: Written comments should be Comments are invited on: (a) Whether Books or records relating to a collection received on or before February 15, 2005 the collection of information is of information must be retained as long to be assured of consideration. necessary for the proper performance of as their contents may become material the functions of the agency, including in the administration of any internal ADDRESSES: Direct all written comments to R. Joseph Durbala, Internal Revenue whether the information shall have revenue law. Generally, tax returns and practical utility; (b) the accuracy of the tax return information are confidential, Service, Room 6516, 1111 Constitution Avenue NW., Washington, DC 20224. agency’s estimate of the burden of the as required by 26 U.S.C. 6103. collection of information; (c) ways to FOR FURTHER INFORMATION CONTACT: Request for Comments: Comments enhance the quality, utility, and clarity submitted in response to this notice will Requests for additional information or of the information to be collected; (d) be summarized and/or included in the copies of the form and instructions ways to minimize the burden of the request for OMB approval. All should be directed to R. Joseph Durbala, collection of information on comments will become a matter of (202) 622–3634, Internal Revenue respondents, including through the use public record. Service, Room 6516, 1111 Constitution of automated collection techniques or Comments are invited on: (a) Whether Avenue, NW., Washington, DC 20224, other forms of information technology; the collection of information is or through the Internet at and (e) estimates of capital or start-up necessary for the proper performance of [email protected]. costs and costs of operation, the functions of the agency, including SUPPLEMENTARY INFORMATION: Title: maintenance, and purchase of services whether the information shall have Application for IRS Individual Taxpayer to provide information. practical utility; (b) the accuracy of the Identification Number. Approved: December 13, 2004. agency’s estimate of the burden of the OMB Number: 1545–1483. collection of information; (c) ways to Form Number: Form W–7. R. Joseph Durbala, enhance the quality, utility, and clarity Abstract: Form W–7 is used to apply IRS Reports Clearance Officer. of the information to be collected; (d) for an IRS individual taxpayer [FR Doc. 04–27682 Filed 12–16–04; 8:45 am] ways to minimize the burden of the identification number (ITIN). An ITIN is BILLING CODE 4830–01–P
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Part II
Department of the Interior Fish and Wildlife Service
50 CFR Part 17 Endangered and Threatened Wildlife and Plants: Proposed Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover; Proposed Rule
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DEPARTMENT OF THE INTERIOR If this proposal is made final, section 3. You may send comments by 7 of the Act would prohibit destruction electronic mail (e-mail) to Fish and Wildlife Service or adverse modification of critical [email protected]. Please see the habitat by any activity authorized, Public Comments Solicited section 50 CFR Part 17 funded, or carried out by any Federal below for file format and other RIN 1018–AT89 agency. As required by section 4 of the information about electronic filing. In Act, we will consider the economic and the event that our internet connection is Endangered and Threatened Wildlife other relevant impacts prior to making not functional, please submit your and Plants; Proposed Designation of a final decision on what areas to comments by the alternate methods Critical Habitat for the Pacific Coast designate as critical habitat. mentioned above. Population of the Western Snowy We hereby solicit information and The comments and materials Plover comments from the public on all aspects received, as well as supporting of this proposal, including data on the documentation used in the preparation AGENCY: Fish and Wildlife Service, economic and other impacts of of this proposed rule, will be available Interior. designation as well as any benefits of for public inspection, by appointment, ACTION: Proposed rule. the designation (see Public Comments during normal business hours at the SUMMARY: We, the U.S. Fish and Solicited section below). We are also above address. Wildlife Service (Service), propose to specifically soliciting public comments FOR FURTHER INFORMATION CONTACT: For designate critical habitat for the Pacific on the appropriateness of excluding general information about this proposed coast distinct population segment of the lands covered by certain approved and rule, or information on units CA 7 western snowy plover (Charadrius pending habitat conservation plans or through CA 10, or on units considered alexandrinus nivosus) pursuant to the management plans, and Department of to include habitat essential to the Endangered Species Act of 1973, as Defense lands pursuant to section conservation of the plover but excluded amended (Act). In developing this 4(b)(2) and 4(a)(3) of the Act from this for the San Francisco Bay area, contact proposal, we evaluated those lands proposed designation. We may revise Glen Tarr or Arnold Roessler, determined to contain habitat features this proposal prior to final designation Sacramento Fish and Wildlife Office, essential to the conservation of the to incorporate or address new 2800 Cottage Way, W–2605 Sacramento, Pacific coast population of the western information received during the CA 95825 (telephone 916–414–6600; snowy plover to ascertain if any specific comment period. facsimile 916–414–6712). areas are appropriate for exclusion from In the development of our final For information on units WA 1 critical habitat pursuant to section designation, we will incorporate or through WA 4, contact Martha Jensen, 4(b)(2) of the Act. Section 4(b)(2) address any new information received Western Washington Fish and Wildlife requires us to take into account during the public comment periods, or Office, 510 Desmond Dr. SE., Lacey, WA economic and other impacts resulting from our evaluation of the potential 98503 (telephone 360–753–9000; from designation, and allows us to economic impacts of this proposal. As facsimile 360–534–9331). exclude areas with essential habitat such, we may revise this proposal to For information on units OR 1 features if the benefits of exclusion address new information and/or to through OR 12, contact Fred Seavey, outweigh those of designation. either exclude additional areas that may Newport Field Office, 2127 SE Marine Additionally, the newly amended warrant exclusion pursuant to section Dr., Newport, OR 97365–5258 section 4(a)(3) requires exclusion of 4(b)(2) or to add in those areas (telephone 541–867–4558 ext. 239; military lands subject to an Integrated determined to contain essential habitat facsimile 541–867–4551). Natural Resources Management Plan features but excluded from this For information on units CA 1 (INRMP) that benefits the species. We proposal. through CA 6, contact Jim Watkins, have excluded several units based on DATES: We will accept comments from Arcata Fish and Wildlife Office, 1655 these provisions. Additionally, we have all interested parties until February 15, Heindon Rd., Arcata, CA 95521 considered, but are not proposing, 2005. We must receive requests for (telephone 707–822–7201; facsimile several areas that were either public hearings, in writing, at the 707–822–8411). unoccupied at the time of listing (1993) address shown in the ADDRESSES section For information on units CA 11 or are unoccupied now. We include by January 31, 2005. The specific times, through CA 19, contact Mike McCrary, descriptions and maps of these areas dates, and locations for any hearings Ventura Fish and Wildlife Office, 2493 and are soliciting public comment will be announced in the Federal Portola Rd., Suite B, Ventura, CA 93003 regarding the appropriateness of Register in the coming months. (telephone 805–644–1766; facsimile including any of these areas in the final ADDRESSES: If you wish to comment, 805–644–3958). critical habitat designation. We propose you may submit your comments and For information on units CA 20 to designate approximately 17,299 acres materials concerning this proposal by through CA 27, contact Kevin Clark, (ac) (7,001 hectares (ha)) within 35 units any one of several methods: Carlsbad Fish and Wildlife Office, 6010 along the coasts of California, Oregon, 1. You may submit written comments Hidden Valley Rd., Carlsbad, CA 92009 and Washington. This rule is being and information to Wayne White, Field (telephone 760–431–9440). proposed pursuant to a court order Supervisor, U.S. Fish and Wildlife SUPPLEMENTARY INFORMATION: issued in July 2003, partially vacating Service, Sacramento Fish and Wildlife critical habitat established for the Office, 2800 Cottage Way, W–2605, Public Comments Solicited Pacific coast population of the western Sacramento, California 95825 We intend that any final action snowy plover and remanding the (telephone 916–414–6600). resulting from this proposal will be as previous designation of critical habitat 2. You may hand-deliver written accurate and as effective as possible. for preparation of a new analysis of the comments to our Sacramento Fish and Therefore, comments or suggestions economic impacts (Coos County Board Wildlife Office, at the address given from the public, other concerned of County Commissioners et al. v. above, or fax your comments to 916– governmental agencies, the scientific Department of the Interior et al.). 414–6713. community, industry, or any other
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interested parties concerning this have received your Internet message, critical habitat is of little additional proposed rule are hereby solicited. contact us directly by calling our value for most listed species, yet it Comments are particularly sought Sacramento Fish and Wildlife Office at consumes large amounts of conservation concerning: phone number 916–414–6600. Please resources. Sidle (1987) stated, ‘‘Because (1) The reasons why any habitat note that the e-mail address the Act can protect species with and should or should not be determined to [email protected] will be closed out at without critical habitat designation, be critical habitat as provided by section the termination of the public comment critical habitat designation may be 4 of the Act, including whether the period. redundant to the other consultation benefit of designation will outweigh any Our practice is to make comments, requirements of section 7.’’ Currently, threats to the species due to designation; including names and home addresses of only 445 species or 36 percent of the (2) Specific information on the respondents, available for public review 1,244 listed species in the U.S. under amount and distribution of western during regular business hours. the jurisdiction of the Service have snowy plover habitat, and what habitat Individual respondents may request that designated critical habitat. We address features and areas are essential to the we withhold their home addresses from the habitat needs of all 1,244 listed conservation of the species and why; the rulemaking record, which we will species through conservation (3) Land use designations and current honor to the extent allowable by law. mechanisms such as listing, section 7 or planned activities in the subject areas There also may be circumstances in consultations, the Section 4 recovery and their possible impacts on proposed which we would withhold from the planning process, the Section 9 critical habitat; rulemaking record a respondent’s protective prohibitions of unauthorized (4) Any foreseeable economic or other identity, as allowable by law. If you take, Section 6 funding to the States, potential impacts resulting from the wish us to withhold your name and/or and the Section 10 incidental take proposed designation and, in particular, address, you must state this permit process. The Service believes any impacts on small entities; and prominently at the beginning of your that it is these measures that may make (5) Whether our approach to comment. However, we will not the difference between extinction and designating critical habitat could be consider anonymous comments. We survival for many species. improved or modified in any way to will make all submissions from We note, however, that a recent 9th provide for greater public participation organizations or businesses, and from Circuit judicial opinion, Gifford Pinchot and understanding, or to assist us in individuals identifying themselves as Task Force v. United States Fish and accommodating public concerns and representatives or officials of Wildlife Service, has invalidated the comments. organizations or businesses, available Service’s regulation defining destruction (6) Comments or information as to for public inspection in their entirety. or adverse modification of critical whether further clarity or specificity of Comments and materials received will habitat. We are currently reviewing the the Primary Constituent Elements is be available for public inspection, by decision to determine what effect it may necessary; appointment, during normal business have on the outcome of consultations (7) Some of the lands we have hours at the above address. pursuant to section 7 of the Act. identified as containing habitat features essential for the conservation of the Designation of Critical Habitat Provides Procedural and Resource Difficulties in Pacific coast population of the western Little Additional Protection to Species Designating Critical Habitat snowy plover are being considered for In 30 years of implementing the Act, We have been inundated with exclusion from the final designation of the Service has found that the lawsuits for our failure to designate critical habitat or are not included in designation of statutory critical habitat critical habitat, and we face a growing this proposed designation. We provides little additional protection to number of lawsuits challenging critical specifically solicit comment on the most listed species, while consuming habitat determinations once they are possible inclusion or exclusion of such significant amounts of available made. These lawsuits have subjected the areas and: conservation resources. The Service’s Service to an ever-increasing series of (a) Whether these areas contain present system for designating critical court orders and court-approved essential habitat features; habitat has evolved since its original settlement agreements, compliance with (b) Whether these, or other areas statutory prescription into a process that which now consumes nearly the entire proposed but not specifically addressed provides little real conservation benefit, listing program budget. This leaves the in this proposal, warrant exclusion; and is driven by litigation and the courts Service with little ability to prioritize its (c) Relevant factors that should be rather than biology, limits our ability to activities to direct scarce listing considered by us when evaluating the fully evaluate the science involved, resources to the listing program actions basis for not designating these areas as consumes enormous agency resources, with the most biologically urgent critical habitat under section 4(b)(2) of and imposes huge social and economic species conservation needs. the Act). costs. The Service believes that The consequence of the critical If you wish to comment, you may additional agency discretion would habitat litigation activity is that limited submit your comments and materials allow our focus to return to those listing funds are used to defend active concerning this proposal by any one of actions that provide the greatest benefit lawsuits, to respond to Notices of Intent several methods (see ADDRESSES to the species most in need of (NOIs) to sue relative to critical habitat, section). Please submit electronic protection. and to comply with the growing number comments to [email protected] in of adverse court orders. As a result of ASCII file format and avoid the use of Role of Critical Habitat in Actual this consequence, listing petition special characters or any form of Practice of Administering and responses, the Service’s own proposals encryption. Please also include ‘‘Attn: Implementing the Act to list critically imperiled species, and Western snowy plover’’ in your e-mail While attention to and protection of final listing determinations on existing subject header and your name and habitat is paramount to successful proposals are all significantly delayed. return address in the body of your conservation actions, we have The accelerated schedules of court- message. If you do not receive a consistently found that, in most ordered designations have left the confirmation from the system that we circumstances, the designation of Service with almost no ability to
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provide for adequate public vegetation, and near water seeps in salt Pacific Coast WSPs also tend to nest in participation or to ensure a defect-free pans. Prey species include mole crabs relatively higher densities near fresh rulemaking process before making (Emerita analoga), crabs (Pachygrapsus water or brackish wetlands such as river decisions on listing and critical habitat crassipes), polychaete worms (Neridae, mouths, estuaries, and tidal marshes proposals due to the risks associated Lumbrineris zonata, etc.), amphipods (Page and Stenzel 1981). They use these with noncompliance with judicially (Corophium spp., etc.), sand hoppers areas both as foraging sites, and in the imposed deadlines. This situation in (Orchestoidea), flies (Ephydridae, case of freshwater sources, for drinking turn fosters a second round of litigation Dolichopodidae), and beetles water (Page and Stenzel 1981, Page et al. in which those who fear adverse (Carabidae, etc.). Accordingly, beach 1995a). They may also be capable of impacts from critical habitat cleaning activities that remove kelp and functioning for long-periods without designations challenge those rake sand can harm plover foraging fresh water by subsisting on water designations. The cycle of litigation success (Page et al. 1995a;). obtained from insect prey (Purdue 1976, appears endless, is very expensive, and The Pacific Coast WSP breeds Page et al. 1995a). in the final analysis provides relatively primarily on coastal beaches from Both sexes incubate the eggs, but little additional protection to listed southern Washington to southern Baja females often desert the chicks species. California, Mexico. This habitat is approximately one week after hatching The costs resulting from the variable because of unconsolidated (Warriner et al. 1986, Page et al. 1995a). designation include legal costs, the costs soils, high winds, storms, wave action, This allows the females to nest up to of preparation and publication of the and colonization by plants. Sand spits, three times in a season, particularly in designation, the analysis of the dune-backed beaches, beaches at creek more southern areas where nesting economic effects and the costs of and river mouths, and salt pans at seasons are longer in duration. Males requesting and responding to public lagoons and estuaries are the preferred typically stay with the chicks until they comments, and, in some cases, the costs habitats for nesting plovers (Wilson fledge (take their first flight) about 30 of compliance with National 1980; Stenzel et al. 1981). Additional days after hatching. Newly hatched Environmental Policy Act. None of western snowy plover nesting habitats chicks are capable of running and these costs result in any benefit to the include bluff-backed beaches, dredged foraging almost immediately; from this species that is not already afforded by material disposal sites, salt pond levees, point parental behavior consists of the protections of the Act enumerated dry salt ponds, and river bars (Wilson defending chicks from other plovers, earlier, and these associated costs 1980; Page and Stenzel 1981; Powell et brooding them in cold weather, leading directly reduce the scarce funds al. 1996; Tuttle et al. 1997). them to suitable feeding areas, and available for direct and tangible The breeding season for Pacific Coast warning of approaching predators. conservation actions. WSPs extends from early March to late Adults may also employ distraction September with birds at more southerly displays to lead predators away from Background locations nesting earlier in the season their young (Page et al. 1995a). The western snowy plover than birds located farther north (Page et After their first chicks fledge, males (Charadrius alexandrinus nivosus), one al. 1995a). Males establish nesting may attempt to raise a new brood of of two subspecies of snowy plover to territories from which they advertise for chicks with a new partner. Both sexes nest in North America, is a small mates using calls and behavioral will also readily attempt to raise new shorebird with pale brown to gray displays. Territory sizes can vary from chicks if they lose an entire clutch of upperparts, gray to black legs and bill, about 0.1 to 1.0 ha (0.25 to 2.5 ac) at eggs or brood of chicks, assuming and dark patches on the forehead, interior sites (Page et al. 1995a). A study enough time remains in the nesting behind the eyes, and on either side of of coastal plovers found a maximum season (Page et al. 1995a). Both clutches the upper breast (Page et al. 1995a). The territory size of 0.5 ha (1.2 ac) in coastal and broods may be lost due to predators, species was first described in 1758 by salt pan habitat, but speculated that tides and storms, and human Linnaeus (American Ornithologists’ beach territories may have been larger recreational activities. Examples of the Union 1957). The Pacific coast (Warriner et al. 1986). After pair latter include both repeated flushings of population distinct population segment formation, both sexes defend the nesting nesting plovers and direct damage to of the western snowy plover (Pacific territory from other plovers. The nests or to young, resulting from Coast WSP) is defined as those purpose of such defense is apparently humans, dogs, horses or vehicles that individuals nesting adjacent to tidal unrelated to protection of food resources either approach plover nests too closely waters of the Pacific Ocean, and within the territory, since both sexes or actually overrun plovers and nests. includes all nesting birds on the frequently forage in non-territorial areas (Service 1993, Ruhlen et al. 2003). mainland coast, peninsulas, offshore up to 8 km (5 mi) from the nest when Small changes in the adult survival islands, adjacent bays, estuaries and not incubating, and since the chicks and rate can have relatively large effects on coastal rivers. For a more complete attending adults typically leave the population stability (Nur et al. 1999), so discussion of the ecology and life nesting territory shortly after hatching the maintenance of quality history of this population, please see the (Page et al. 1995a). overwintering habitat is important to final rule for listing the Pacific Coast Clutches normally consist of three conservation. In western North America, WSP as a threatened species, which was eggs laid in a shallow depression both coastal and inland-nesting western published in the Federal Register on scraped in the sand by the male. Such snowy plovers winter along the coast March 5, 1993 (58 FR 12864), and the ‘‘nests’’ are typically located in open flat (Page et al. 1995a). Some coastal plovers previously published final rule areas, often near some conspicuous migrate up or down the coast to designating critical habitat for this feature such as a piece of driftwood wintering locations, while others remain population segment, which was (Page and Stenzel 1981, Page et al. at their nesting beaches. Coastal published on December 7, 1999 (64 FR 1995a). They are usually located within individuals may also migrate some years 68508). 100 m (328 ft) of the shore, but may be and not others (Warriner et al. 1986, Pacific Coast WSPs typically forage farther where shore access remains Page et al. 1995a). Wintering birds use for small invertebrates in wet or dry unblocked by dense vegetation (Page many of the beaches used for nesting, beach sand, tide-cast kelp, low foredune and Stenzel 1981, Page et al. 1995a). but will also winter at several beaches
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where nesting does not occur (Stenzel in for the Pacific Coast WSP and includes Our regulations state that, ‘‘The litt. 2004, Page in litt. 2004). They also only those areas we currently consider Secretary shall designate as critical visit human-made salt ponds, and to have habitat features most essential to habitat areas outside the geographical estuarine sand and mud flats (Page et al. the conservation of the species. area presently occupied by a species 1986). Because coastal plovers can only when a designation limited to its Critical Habitat switch from being migratory to non- present range would be inadequate to migratory (Warriner et al. 1986), they Critical habitat is defined in section 3 ensure the conservation of the species’’ have the option of staying to nest at a of the Act as—(i) the specific areas (50 CFR 424.12(e)). Accordingly, when hospitable wintering location. Sites that within the geographic area occupied by the best available scientific and have historically supported nesting, but a species, at the time it is listed in commercial data do not demonstrate which currently only support wintering accordance with the Act, on which are that the conservation needs of the plovers, therefore have the potential to found those physical or biological species so require, we will not designate attract new nesters relatively quickly if features (I) essential to the conservation critical habitat in areas outside the appropriate management renders such of the species and (II) that may require geographic area occupied by the species. areas suitable for nesting once again. special management considerations or The Service’s Policy on Information This has been successfully carried out at protection; and (ii) specific areas Standards Under the Endangered Coal Oil Point and Hollywood Beach in outside the geographic area occupied by Species Act, published in the Federal southern California (M. McCrary, U.S. a species at the time it is listed, upon Register on July 1, 1994 (59 FR 34271), Fish and Wildlife Service, in litt. 2004). a determination that such areas are and Section 515 of the Treasury and Such management successes are essential for the conservation of the General Government Appropriations important to conservation, since the loss species. ‘‘Conservation’’ means the use Act for Fiscal Year 2001 (Pub. L. 106– of numerous historical nesting sites was of all methods and procedures that are 554; H.R. 5658) and the associated a major consideration in their original necessary to bring an endangered or a Information Quality Guidelines issued listing (Service 1993). threatened species to the point at which by the Service, provide criteria, listing under the Act is no longer establish procedures, and provide Previous Federal Actions necessary. guidance to ensure that decisions made For a discussion of previous Federal Critical habitat receives protection by the Service represent the best actions regarding the Pacific coast under section 7 of the Act through the scientific and commercial data population of the western snowy plover, prohibition against destruction or available. They require Service please see the December 7, 1999, final adverse modification of critical habitat biologists to the extent consistent with rule to designate critical habitat for the with regard to actions carried out, the Act and with the use of the best Pacific coast population of the western funded, or authorized by a Federal scientific and commercial data snowy plover (64 FR 68508). That rule agency. Section 7 requires consultation available, to use primary and original was remanded and partially vacated by on Federal actions that are likely to sources of information as the basis for the United States District Court for the result in the destruction or adverse recommendations to designate critical District of Oregon on July 2, 2003, in modification of critical habitat. The habitat. When determining which areas order to conduct a new analysis of designation of critical habitat does not are critical habitat, a primary source of economic impacts (Coos County Board affect land ownership or establish a information is generally the listing of County Commissioners et. al. v. refuge, wilderness, reserve, preserve, or package for the species. Additional Department of the Interior et al., CV 02– other conservation area. Such information sources include the 6128, M. Hogan). The court set a designation does not allow government recovery plan for the species, articles in deadline of December 1, 2004, for or public access to private lands. peer-reviewed journals, conservation submittal of a new proposed critical To be included in a critical habitat plans developed by States and counties, habitat designation to the Federal designation, the habitat within the area scientific status surveys and studies, Register. The court-established deadline occupied by the species must first have biological assessments, or other for submittal of the final designation is features that are ‘‘essential to the unpublished materials and expert September 20, 2005. conservation of the species.’’ Critical opinion or personal knowledge. All In August 2002 we received a petition habitat designations identify, to the information is used in accordance with to delist the Pacific Coast WSP from the extent known using the best scientific the provisions of the Data Quality Act. Surf Ocean Beach Commission of and commercial data available, habitat Section 4 of the Act requires that we Lompoc, California. The City of Morro areas that provide essential life cycle designate critical habitat on the basis of Bay submitted substantially the same needs of the species (i.e., areas on which what we know at the time of petition dated May 30, 2003. On March are found the primary constituent designation. Habitat is often dynamic, 22, 2004, we published a notice that the elements, as defined at 50 CFR and species may move from one area to petition presented substantial 424.12(b)). If an area occupied by the another over time. Furthermore, we information to indicate that delisting species is designated it is because the recognize that designation of critical may be warranted (69 FR 13326). We are primary constituent elements area habitat may not include all of the currently conducting both a 12-month currently present in sufficient quantity habitat areas that may eventually be and a 5-year status review of the and quality to assure biological determined to be necessary for the population under sections 4(b)(3)(B) and function. recovery of the species. For these 4(c)(2) of the Act. Occupied habitat may be included in reasons, critical habitat designations do This proposal relies upon the best critical habitat only if the essential not signal that habitat outside the scientific and commercial data available features thereon may require special designation is unimportant or may not to us, including the biological and management or protection. Thus, we do be required for recovery. habitat information described in the not include areas where existing Areas that support populations, but previous final rules, and recognized management is sufficient to conserve are outside the critical habitat principles of conservation biology. the species. (As discussed below, such designation, will continue to be subject Accordingly, this proposal differs from areas may also be excluded from critical to conservation actions implemented the previous critical habitat designation habitat pursuant to section 4(b)(2).) under section 7(a)(1) of the Act and to
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the regulatory protections afforded by sites in a geographic region capable of relationship of those needs to the the section 7(a)(2) jeopardy standard, as supporting the most breeding plovers. population’s habitat, as indicated and determined on the basis of the best Where appropriate, we adjusted our summarized below by the best scientific available information at the time of the estimates of the number of breeding data available. action. Federally funded or permitted birds a site could support according to Space for Individual and Population projects affecting listed species outside additional information supplied by Growth and Normal Behavior their designated critical habitat areas surveys and by local species and habitat may still result in jeopardy findings in experts. Pacific Coast WSPs establish nesting some cases. Similarly, critical habitat (2) We added any major, currently territories, but these can vary widely in designations made on the basis of the occupied wintering sites not already size and do not provide sufficient best available information at the time of selected under criterion one. This is habitat for foraging (see Background designation will not control the necessary to provide sufficient habitat section above). Critical habitat must direction and substance of future for the survival of breeding birds during therefore extend beyond nesting recovery plans, habitat conservation the non-breeding season. A ‘‘major’’ territories to include space for foraging plans, or other species conservation wintering site must at least support and water requirements during the planning efforts if new information more wintering birds than average for nesting season, space for overwintering. available to these planning efforts calls the geographical region. Food and Water for a different outcome. (3) Finally, we added any additional occupied sites that provide unique Pacific Coast WSPs typically forage in Methods habitat, or that are situated to facilitate open areas by locating prey visually and As required by section 4(b)(2) of the genetic interchange between otherwise then running to seize it with their beaks Act and regulations at 50 CFR 424.12, widely separated units. This criterion is (Page et al. 1995a). They may also probe we used the best scientific data based on standard conservation biology in the sand for burrowing invertebrates, available in determining the areas that principles for the conservation of rare or charge flying insects that are resting contain habitat features essential to the and endangered animals and their on the ground, snapping at them as they conservation of the Pacific Coast WSP. habitats (Shaffer 1981, 1987, 1995; flush. Accordingly they need open areas Data sources include research published Fahrig and Merriam 1985; Gilpin and in which to forage, to facilitate both in peer-reviewed articles; previous Soule 1986; Goodman 1987a, 1987b; prey location and capture. Deposits of Service documents on the species, Stacey and Taper 1992; Mangel and Tier tide-cast wrack such as kelp or including the original critical habitat 1994; Lesica and Allendorf 1995; Fahrig driftwood tend to attract certain designation (Service 1999) and final 1997; Noss and Csuti 1997; Huxel and invertebrates, and so provide important listing determination (Service 1993); Hastings 1998; Redford and Richter foraging sites for plovers (Page et al. numerous surveys; and aerial 1999; Debinski and Holt 2000; Sherwin 1995a). Plovers forage both above and photographs and GIS mapping and Moritz 2000; Grosberg 2002; Noss et below high tide, but not while those information from State sources and in al. 2002). By protecting a variety of areas are underwater. Foraging areas our files. habitats and facilitating genetic will therefore typically be limited by Our first step was to identify those interchange between them, we increase water on their shoreward side, and by areas occupied by the Pacific Coast WSP the ability of the species to adjust to dense vegetation or development on at the time of listing. The second step various limiting factors that affect the their landward sides. was to identify, in accordance with population, such as predators, disease, Coastal plovers use sites of fresh section 3(5)(A)(i) of the Act and major storms, and inbreeding. water for drinking where available, but some historic nesting sites, particularly regulations at 50 CFR 424.12, the Primary Constituent Elements physical and biological habitat features in southern California, have no obvious (also called primary constituent In accordance with section 3(5)(A)(i) nearby freshwater sources. Adults and elements, or PCEs) at those sites that are of the Act and regulations at 50 CFR chicks in those areas must be assumed essential to the conservation of the 424.12, we are required to base critical to obtain their necessary water from the species. We have mapped critical habitat determinations on the best food they eat. Accordingly we have not habitat unit boundaries at each site scientific and commercial data available included freshwater sites among the based on the extent of habitat containing and to consider those physical and primary constituent elements of the sufficient PCEs to support biological biological features (primary constituent population. elements (PCEs)) that are essential to the function. Reproduction and Rearing of Offspring The mapping itself was the third step, conservation of the species, and that while the fourth and final step was to may require special management Pacific Coast WSPs nest in exclude certain units based on sections considerations and protection. These depressions in open, relatively flat 4(a)(3), 3(5)(a), and 4(b)(2) of the Act include, but are not limited to: space for areas, near to tidal waters but far enough (see Exclusions section below). We individual and population growth and away to avoid being inundated by daily discuss each of these four steps more for normal behavior; food, water, air, tides. Typical substrate is beach sand, fully below. light, minerals, or other nutritional or but plovers may also lay their eggs in physiological requirements; cover or existing depressions in harder ground Criteria Used To Identify Critical shelter; sites for breeding, reproduction, such as salt pan, cobblestones or dredge Habitat and rearing (or development) of tailings. Where available, dune systems To identify sites containing habitat offspring; and habitats that are protected with numerous flat areas and easy features most essential to the from disturbance or are representative of access to the shore are particularly conservation of the Pacific Coast WSP the historic geographical and ecological favored for nesting. Plover nesting areas (as defined above in our Methods distributions of a species. must provide shelter from predators and section), we applied the following three Our determination of the primary human disturbance, as discussed below. criteria: constituent elements for the Pacific Unfledged chicks forage with one or (1) Our first criterion for critical Coast WSP is based on the biological both parents, using the same foraging habitat unit selection was to choose needs of the population, and on the areas and behaviors as adults.
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Cover or Shelter areas (Page, et al. 2003 (summer 93 whether all, only a portion, or none of Plovers and their eggs are well survey), Palermo 2004). the unoccupied areas identified are essential to the conservation of the camouflaged against light colored, List of Primary Constituent Elements population. Areas not being proposed sandy or pebbly backgrounds (Page et The primary constituent elements for al. 1995a), so open areas with such due to lack of occupancy are identified the Pacific Coast WSP habitat include: as such in the Unit Descriptions and substrates actually constitute shelter for (1) Sparsely vegetated areas above purposes of nesting and foraging. Such Map sections. Those areas are: WA 1, daily high tides (such as sandy beaches, OR 1A, OR 1B, OR 2, OR 4, OR 5A, OR areas provide little cover to predators, dune systems immediately inland of an and allow plovers to fully utilize their 5B, OR 6, OR 8C, OR 10B, OR 10C, OR active beach face, salt flats, seasonally 11, OR 12, and CA 11A. camouflage and running speed. Chicks exposed gravel bars, dredge spoil sites, may also crouch near driftwood, dune artificial salt ponds and adjoining Mapping plants and piles of kelp to hide from levees) that are relatively undisturbed Our mapping process was based on predators (Page and Stenzel 1981). Open by the presence of humans, pets, the need to exclude areas that lack areas do not provide shelter from winds vehicles or human-attracted predators PCEs, while simultaneously accounting and storms, however, and these cause (essential for reproduction, food, shelter for the dynamic nature of beach habitat, many nest losses, along with extreme from predators, protection from and of the second PCE above. Our high tides. Plovers readily scrape blown disturbance, and space for growth and mapping process also allowed us to sand out of their nests, but there is little normal behavior). provide a reasonable level of certainty to they can do to protect their nests against (2) Sparsely vegetated sandy beach, landowners regarding the location of serious storms or flooding other than to mud flats, gravel bars or artificial salt unit boundaries relative to private attempt to lay a new clutch if the old ponds subject to daily tidal inundation lands. one is lost (Page et al. 1995a). but not currently under water, that We used Geographic Information No studies have quantified the support small invertebrates such as Systems (GIS) software to establish amount of vegetation cover that would crabs, worms, flies, beetles, sand landward bounds for those breeding and make an area unsuitable for nesting or hoppers, clams, and ostracods (essential wintering sites that meet the criteria foraging, but coastal nesting and for food). listed above. We drew the landward foraging locations typically have (3) Surf or tide-cast organic debris bounds so as to exclude habitat lacking relatively well-defined boundaries such as seaweed or driftwood located on PCEs, as determined using the most between open sandy substrate favorable open substrates such as those recent digital orthorectified aerial to plovers and unfavorably dense mentioned above (essential to support photographs available. Since most vegetation inland. Such bounds show small invertebrates for food, and to private land is located near the up well in aerial and satellite provide shelter from predators and landward bounds, and since the photographs, which we used to map weather for reproduction). landward side of the unit is likely to essential habitat features. All areas proposed as critical habitat change less over time than other sides, Undisturbed Areas for the Pacific Coast WSP were occupied we set the landward bounds to remain by the species at the time of listing and fixed in place, defined by the UTM NAD Disturbance of nesting or brooding contain sufficient primary constituent 27 coordinates of their vertices and plovers by humans and domestic elements to support essential biological endpoints (UTM NAD 27 stands for animals is a major factor affecting function. ‘‘Universal Transverse Mercatur, North nesting success. Plovers leave their American Datum 1927,’’ and is a nests when humans or pets approach Unoccupied Areas Identified for convention for projecting points of the too closely. Dogs may also deliberately Possible Inclusion globe onto a two-dimensional map). chase plovers and trample nests, while The Act has different standards for We defined the seaward bounds of vehicles may directly crush adults, designation of critical habitat in each unit according to mean low water chicks or nests, separate chicks from occupied and unoccupied habitat. For (MLW) (including waters of the Pacific brooding adults, and interfere with areas occupied by the species, these are: Ocean proper, as well as of bays, foraging (Warriner et al. 1986, Service —(i) The specific areas on which are estuaries and rivers where water level is 1993, Ruhlen et al. 2003). Repeated found those physical or biological significantly influenced by the tides). flushing of incubating plovers exposes features essential to the conservation of For purposes of estimating unit sizes, the eggs to the weather and deplete the species and that may require special we approximated MLW in California energy reserves needed by the adult, management considerations or using the most recent GIS projection of which may result in reductions to protection. For areas not occupied, a mean high water (MHW). We chose nesting success. Surveys at Vandenberg determination is required that the entire MHW because it is the only Air Force Base, California, from 1994 to area is essential for the conservation of approximation of the coastline currently 1997, found the rate of nest loss on the species before it can be included in available in GIS format. We were unable southern beaches to be consistently critical habitat. Congress has also to obtain recent GIS maps of MHW or higher than on north beaches (where cautioned the Service to be MLW for Oregon and Washington; recreational use was much lower) ‘‘exceedingly circumspect’’ in therefore, we approximated MLW for (Persons and Applegate 1997). Ruhlen et designating unoccupied habitat. units in those States based on aerial al. (2003) found that increased human Because Congress has directed us to photographs. activities on Point Reyes beaches be exceedingly circumspect in including When determining proposed critical resulted in a lower chick survival rate. unoccupied areas in critical habitat habitat boundaries, we made every Recent efforts in various areas have been designations, we are identifying some effort to avoid proposing the designation implemented to isolate nesting plovers areas which are currently unoccupied or of developed areas such as buildings, from recreational beach users through were unoccupied at the time of listing, paved areas, boat ramps and other the use of docents, symbolic fencing, and requesting comment on whether structures that lack sufficient PCEs to and public outreach have correlated they should be included in the support essential biological functions of with higher nesting success in those designation. We seek comment on the species as well as areas affected by
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the use of the structure. Any such nesting or foraging plovers by humans, Proposed Critical Habitat Designation structures inadvertently left inside vehicles, and domestic animals, high The areas we are proposing as critical proposed critical habitat boundaries are levels of predation on eggs and young, habitat currently provide all of those not considered part of the proposed and loss of habitat due to development habitat components necessary to meet unit. This also applies to the land on and encroachment of dune-stabilizing which such structures sit directly. the primary biological needs of the vegetation such as European beachgrass Pacific Coast WSP, as defined by the Therefore, Federal actions limited to (Ammophila arenaria) (Service 1993). these areas would not trigger section 7 primary constituent elements. The areas The areas proposed for designation as consultations, unless they affect the proposed for designation are those areas critical habitat will require some level of species and/or primary constituent most likely to substantially contribute to elements in adjacent critical habitat. management and/or protection to conservation of the Pacific Coast WSP, address the current and future threats to which when combined with future Special Management Considerations or the Pacific Coast WSP and maintain the management of certain habitats suitable Protections primary constituent elements essential for restoration efforts, will contribute to When designating critical habitat, we to its conservation in order to ensure the the long-term survival and recovery of assess whether the areas determined to overall conservation of the species. The the species. contain habitat features essential for designation of critical habitat does not We are proposing 35 units in conservation may require special imply that lands outside of critical Washington, Oregon, and California as management considerations or habitat do not play an important role in critical habitat for the Pacific Coast protections. The threats affecting the the conservation of the plover. Federal WSP. All these units are within the continued survival and recovery of the activities that may affect those range occupied by the species, and Pacific Coast WSP within each of the unprotected areas outside of critical constitute our best assessment at this proposed critical habitat units and that habitat are still subject to review under time of the areas containing habitat may require special management are section 7 of the Act if they may affect features essential for the conservation of described in the critical habitat unit the plover. The prohibitions of section the Pacific Coast WSP. The approximate descriptions that follow. Primary threats 9 (e.g., harm, harass, capture) also area encompassed within each proposed requiring special management continue to apply both inside and critical habitat unit is shown in Table 3, considerations include disturbance of outside of designated critical habitat. below.
TABLE 1.—APPROXIMATE AREA EXCLUDED FROM PROPOSED CRITICAL HABITAT FOR THE PACIFIC COAST WSP PURSUANT TO SECTIONS 3(5)(A), 4(A)(3) AND 4(B)(2) OF THE ACT
Applicable section Location Size Basis of exclusion of the act
San Nicholas Island, Ventura County, CA. 1 unit ...... 524 ac INRMP* ...... 4(a)(3). (212 ha)
Salinas River National Wildlife Refuge, Monterey County, CA. 142 ac CCP* ...... 4(b)2 and 3(5)(a). Part of one unit. (57 ha)
Guadalupe/Nipomo Dunes National Wildlife Refuge, San Luis 235 ac Plover mgt plan with section 7 consulta- Obispo County, CA. Part of one unit. (95 ha) tion.
San Diego, CA. One subunit ...... 23 ac HCP*. (9 ha)
Marine Corps Base Camp Pendleton, San Diego County, CA. 2 507 ac Use of area for military training ...... 4(b)(2) alone. subunits. (205 ha)
Naval Amphibious Base, Coronado, San Diego County, CA. 1 144 ac subunit. (58 ha)
San Francisco Bay, CA. 6 subunits totaling ...... 1,847 ac Multi-agency mgt plan in preparation ...... (747 ha)
Total Excluded Area ...... 3,422 ac 1,385 (ha) *INRMP: Integrated Natural Resource Management Plan. **CCP: Comprehensive Conservation Plan. ***HCP: Habitat Conservation Plan.
TABLE 2.—APPROXIMATE AREA OF ALL LOCATIONS FITTING THE CRITERIA DEFINED ABOVE AND SUPPORTING HABITAT FEATURES ESSENTIAL TO CONSERVATION (FIRST COLUMN). THESE LOCATIONS ARE BROKEN DOWN ACCORDING TO: UNOCCUPIED AREAS NOT PROPOSED (SECOND COLUMN); EXCLUDED AREAS (THIRD COLUMN); AND PROPOSED CRIT- ICAL HABITAT AREA FOR THE PACIFIC COAST WSP (FOURTH COLUMN)
Areas with essential features Unoccupied areas not proposed Excluded areas Total proposed critical habitat
22,359 (9,048 ha) ...... 1,638 ac (663 ha) ...... 3,422 ac (1,385 ha) ...... 17,299 ac (7,001 ha).
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TABLE 3.—CRITICAL HABITAT UNITS PROPOSED FOR THE PACIFIC COAST WSP
Total Unit Proposed? Federal State/ Private local acres ha acres ha acres
Washington
WA 1. Copalis Spit ...... No ...... 0 0 446 180.5 0 0 446 180.5 WA 2. Damon Pt, Oyhut ...... Yes ...... 0 0 908 368 0 0 908 368 WA 3. Midway Beach ...... Yes ...... 0 0 266 108 520 210 786 318 WA 4. Leadbetter Pt ...... Yes ...... 270 109 627 254 172 70 1,069 433
Subtotal ...... 270 109 1,801 729 692 280 2,763 1,118
Oregon
OR 1. Clatsop Spit: OR 1A. Columbia River Spit ..... No ...... 65 26.3 0 0 0 0 65 26.3 OR 1B. Necanicum River Spit .. No ...... 0 0 78 31.6 0 0 78 31.6 OR 2. Nehalem River Spit ...... No ...... 0 0 145 58.7 0 0 145 58.7 OR 3. Bayocean Spit ...... Yes ...... 85 34 122 49 0 0 207 84 OR 4. Netarts Spit ...... No ...... 0 0 143 57.9 0 0 143 57.9 OR 5. Sand Lake: OR 5A. Sand Lake North ...... No ...... 0 0 38 15.4 0 0 38 15.4 OR 5B. Sand Lake South ...... No ...... 0 0 0 0 104 42.1 104 42.1 OR 6. Nestucca River Spit ...... No ...... 0 0 147 59.5 0 0 147 59.5 OR 7. Sutton/Baker Beaches ...... Yes ...... 260 105 0 0 0 0 260 105 OR 8. Siltcoos to Tenmile: OR 8A. Siltcoos River Spit ...... Yes ...... 188 76 0 0 0 0 188 76 OR 8B. Dunes Overlook/ Yes ...... 375 152 0 0 0 0 375 152 Tahkenitch Creek Spit. OR 8C. N Umpqua River Spit ... No ...... 74 29.9 37 15 0 0 111 44.9 OR 8D. Tenmile Creek Spit ...... Yes ...... 235 95 0 0 0 0 235 95 OR 9. Coos Bay N Spit ...... Yes ...... 278 113 0 0 0 0 278 113 OR 10. Bandon/Cape Blanco: OR 10A. Bandon to Floras Lk ... Yes ...... 321 130 196 79 163 66 680 275 OR 10B. Sixes River Spit ...... No ...... 0 0 73 29.5 0 0 73 29.5 OR 10C. Elk River Spit ...... No ...... 0 0 0 0 88 35.6 88 35.6 OR 11. Euchre Creek Spit ...... No ...... 0 0 0 0 75 30.4 75 30.4 OR 12. Pistol River Spit ...... No ...... 0 0 116 46.9 0 0 116 46.9
Subtotal ...... 1,742 705 318 129 163 66 2,223 900
California
CA 1. Lake Earl ...... Yes ...... 0 0 13 5 78 32 91 37 CA 2. Big Lagoon ...... Yes ...... 0 0 280 113 0 0 280 113 CA 3. McKinleyville Area: CA 3A. Clam Beach/Little Riv ... Yes ...... 0 0 131 53 24 10 155 63 CA 3B. Mad River ...... Yes ...... 0 0 161 65 217 88 377 153 CA 4. Eel River Area: CA 4A. Humboldt Bay, S Spit ... Yes ...... 20 8 354 143 0 0 375 152 CA 4B. Eel Riv N Spit/Beach .... Yes ...... 0 0 278 112 5 2 283 114 CA 4C. Eel Riv S Spit/Beach .... Yes ...... 0 0 4 2 397 161 402 163 CA 4D. Eel River Gravel Bars .. Yes ...... 0 0 255 103 938 379 1,193 483 CA 5. MacKerricher Beach ...... Yes ...... 0 0 1,017 412 31 13 1,048 424 CA 6. Manchester Beach ...... Yes ...... 0 0 336 136 5 2 341 138 CA 7. Dillon Beach ...... Yes ...... 0 0 0 0 30 12 30 12 CA 8. Pt Reyes Beach ...... Yes ...... 462 187 0 0 0 0 462 187 CA 9. Limantour Spit ...... Yes ...... 124 50 0 0 0 0 124 50 CA 10. Half Moon Bay ...... Yes ...... 0 0 37 15 0 0 37 15 CA 11. Santa Cruz Coast: CA 11A. Waddell Cr Beach ...... No ...... 0 0 8.1 3.3 1.3 0.5 9.3 3.8 CA 11B. Scott Cr. Beach ...... Yes ...... 0 0 0 0 19 8 19 8 CA 11C. Wilder Cr. Beach ...... Yes ...... 0 0 10 4 0 0 10 4 CA 12. Monterey Bay Beaches: CA 12A. Jetty Rd to Aptos ...... Yes ...... 0 0 272 110 0 0 272 110 CA 12B. Elkhorn Sl Mudflat ...... Yes ...... 0 0 281 114 0 0 281 114 CA 12C. Monterey—Moss Lnd Yes ...... 10 4 792 321 0 0 803 325 CA 13. Pt Sur Beach ...... Yes ...... 0 0 61 25 0 0 61 25 CA 14. San Simeon Beach ...... Yes ...... 0 0 28 11 0 0 28 11 CA 15. Estero Bay Beaches: CA 15A. Villa Cr Beach ...... Yes ...... 0 0 17 7 0 0 17 7 CA 15B. Atascadero Beach ...... Yes ...... 0 0 144 58 0 0 144 58 CA 15C. Morro Bay Beach ...... Yes ...... 0 0 611 247 0 0 611 247 CA 16. Pismo Beach/Nipomo ...... Yes ...... 0 0 770 312 499 202 1,269 513
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TABLE 3.—CRITICAL HABITAT UNITS PROPOSED FOR THE PACIFIC COAST WSP—Continued
Total Unit Proposed? Federal State/ Private local acres ha acres ha acres
CA 17. Vandenberg CA 17A. Vandenberg North ...... Yes ...... 626 253 0 0 0 0 626 253 CA 17B. Vandenberg South ...... Yes ...... 304 123 0 0 0 0 304 123 CA 18. Devereaux Beach ...... Yes ...... 0 0 36 15 0 0 36 15 CA 19. Oxnard Lowlands: CA 19A. Mandalay to Santa Yes ...... 0 0 245 99 105 42 350 142 Clara R Mouth. CA 19B. Ormond Beach ...... Yes ...... 0 0 203 82 0 0 203 82 CA 19C. Mugu Lagoon N ...... Yes ...... 321 130 0 0 0 0 321 130 CA 19D. Mugu Lagoon S ...... Yes ...... 69 28 18 7 0 0 87 35 CA 20. Zuma Beach ...... Yes ...... 0 0 60 24 8 3 68 28 CA 21. Santa Monica Bay: CA 21A. Santa Monica Beach .. Yes ...... 0 0 6 2 19 8 25 10 CA 21B. Dockweiler N ...... Yes ...... 0 0 43 17 0 0 43 17 CA 21C. Dockweiler S ...... Yes ...... 0 0 13 5 11 5 24 10 CA 21D. Hermosa Beach ...... Yes ...... 0 0 10 4 0 0 10 4 CA 22. Bolsa Chica Area: CA 22A. Bolsa Chica Reserve .. Yes ...... 0 0 0 0 591 239 591 239 CA 22B. Huntington St. Beach Yes ...... 0 0 4 2 0 0 4 2 CA 23. Santa Ana River Mouth ...... Yes ...... 0 0 12 5 1 0 13 5 CA 24. San Onofre St Beach ...... Yes ...... 3 1 46 19 9 4 58 24 CA 25. Batiquitos Lagoon: CA 25A Batiquitos West ...... Yes ...... 0 0 15 6 6 3 21 9 CA 25B. Batiquitos Middle ...... Yes ...... 0 0 15 6 8 3 23 9 CA 25C. Batiquitos East ...... Yes ...... 0 0 0 0 21 8 21 8 CA 26. Los Penasquitos ...... Yes ...... 0 0 24 10 0 0 24 10 CA 27. S San Diego: CA 27A. North Island N...... Yes ...... 117 47 0 0 0 0 117 47 CA 27B. North Island S...... Yes ...... 68 28 0 0 0 0 68 28 CA 27C. Silver Strand ...... Yes ...... 75 30 96 39 3 1 174 70 CA 27D. Delta Beach ...... Yes ...... 85 35 0 0 0 0 85 35 CA 27E. Sweetwater NWR ...... Yes ...... 77 31 0 0 51 21 128 52 CA 27F. Tijuana River Beach ... Yes ...... 84 34 76 31 22 9 182 74
Subtotal ...... 2,444 989 6,774 2,741 3,095 1,253 12,313 4,983
Total ...... 4,456 1,804 8,893 3,599 3,950 1,599 17,299 7,001
Unit Descriptions It is a 1.4 mi (2.25 km) long sand spit likelihood for plovers to recolonize the that is bounded on the landward side by site in the future. The proposed units described below the Copalis River. The unit consists of WA 2, Damon Point/Oyhut Wildlife all contain habitat features essential for a long sandy beach with sparsely Area, 908 ac (368 ha) the conservation of the Pacific Coast vegetated dunes that extend to the river, WSP, as defined in the ‘‘Primary providing nesting and foraging Constituent Elements’’ section above. This unit is located at the southern opportunities as well as protection from end of the community of Ocean Shores All units are located within the range of the weather. The recent northward shift the population, in the states of and is a sandy spit that extends into of Connor Creek washed out the beach Washington, Oregon, and California. Grays Harbor. Damon Point includes the access road at the southern end, They are all considered currently following features essential to the effectively closing the area to motorized occupied (with documented use by conservation of the species: sandy vehicles. Because of its relatively remote plovers since 2000), unless otherwise beaches that are relatively undisturbed location, the area receives little human noted. Those units not currently by human or tidal activity (nesting use. The spit historically supported 6 to occupied are considered essential to the habitat), large expanses of sparsely 12 nesting pairs of plovers, but no use conservation of the population for the vegetated barren terrain, and mudflats has been documented since 1984 reasons provided in the description. and sheltered bays that provide ample (WDFW 1995). The unit is entirely foraging areas. Research in the mid Washington within Griffith Priday State Park (WA 1980’s indicated that up to 20 snowy WA 1, Copalis Spit, 446 ac (180.5 ha): State Parks). The primary threat to the plovers used the area for nesting. Plover (Unoccupied Area, Identified for unit at this time is erosion caused by the use has declined somewhat over the Possible Inclusion) northward movement of Connor Creek. past 20 years; currently between 6 and While this natural occurrence is limiting 9 adult birds use the site during the This is the northernmost unit in the human use in the area, it has resulted breeding season (average reproductive range of the species. Copalis Spit is in a gradual but steady decline in success at Damon is 1.5 chicks per male) located along the central Washington available habitat over the past 50 years. (WDFW in litt. 2003). The conservation coast, approximately 20 miles (mi) (32.2 Habitat restoration (beachgrass goal for WA 2 is 12 adult plovers. kilometers (km) northwest of Hoquiam. eradication) would improve the Approximately 99 percent of the 908-
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acre unit is administered by the State -tide mark. The beach below high tide Oregon (Washington Department of Fish and is administered by the Washington OR 1. Clatsop Spit: (Unoccupied Area, Wildlife—227 ac (92 ha); Washington Department of Natural Resources, and Identified for Possible Inclusion) State Parks—63.6 ac (25.7 ha); and State regulations, including seasonal Washington Department of Natural motorized vehicle access and Although the unit is currently Resources—605.6 ac (245.1 ha)). The recreational use, apply to this area. The occupied (L. Kelly, Service, in litt. 2003), it was not occupied at the time western edge of the unit lies adjacent to area of the beach that falls under State of listing (F. Seavey, Service in litt. a municipal wastewater treatment jurisdiction is included in the unit. 2004). facility that is managed by the City of Leadbetter is the largest of the four Ocean Shores (9 ac (3.6 ha)). As with proposed critical habitat units in Subunit OR 1A, Columbia River South Copalis Spit, the access road has Washington and covers approximately Spit, 65 ac (26 ha): (Unoccupied Area, washed out and the area is currently Identified for Possible Inclusion) inaccessible to motorized vehicles. The 1,069 ac (433 ha) and over 7 mi (11.3 primary threats to plovers at this time km) of coastline. Two hundred seventy This subunit is on the northwestern are recreational use (pedestrians with acres (109.3 ha) of WA 4 is on Willapa coast of Clatsop County, Oregon, about dogs), habitat loss from European National Wildlife Refuge. The Refuge 20 miles (32.2 km) northwest of the City beachgrass, and potential re-opening of has a plover management plan, which of Astoria. It is bounded by the the vehicle access road. has not yet undergone section 7 Columbia River and Fort Stevens State consultation. Six hundred twenty -seven Park and is located about 1 mi (1.6 km) WA 3, Midway Beach, 786 ac (318 ha) acres (253.7 ha) of WA 4 are on State east of the base of the Columbia River This unit is located between the lands, generally below the mean high South Jetty. The subunit is characteristic community of Grayland and Willapa water line (MHW). Another 172 ac (69.6 of a dune-backed beach adjacent to mud Bay and covers an area called Twin ha) of the unit are on private land. Since flats and an estuary. It includes the Harbors Beaches. Midway is an Leadbetter National Wildlife Refuge following features essential to the conservation of the species (PCEs): expansive beach and is nearly 0.5 mi extends to the mean high -water line, (0.8 km) wide at the widest point. Beach Areas of sandy beach relatively the area below MHW makes up an undisturbed by human or tidal activity accretion since 1998 has greatly important portion of this unit. We improved habitat conditions, resulting (for nesting and foraging); areas of sandy therefore used historic aerial photos to in the re-establishment of a plover beach above and below the high-tide estimate a more typical seaward population at this site (WDFW in litt. line with occasional surf-cast wrack 2000). Nearly half of the birds that nest boundary of the north end of the spit. supporting small invertebrates (for and/or over-winter at Midway were As with the other units, however, the foraging); and close proximity to tidally banded in Oregon or Humboldt County, true seaward boundary is the edge of the influenced estuarine mud flats (for California (WDFW in litt. 2003). Threats tidal water. Approximately 30 snowy foraging). This subunit is part of a larger at Midway include motorized vehicles plovers nest and over-winter on the spit, unit of the 17-mile (27.4 km) Clatsop combined with a lack of enforcement of with about 20–25 birds nesting north of Plains that is located between the the wet sand driving restrictions and the Refuge boundary and 5–10 birds Necanicum River to the south and the human activity on holiday weekends using the State park and private beaches Columbia River to the north. Most (e.g., Fourth of July fireworks). Although to the south (Service in litt. 2004). The recently documented plovers for the public access is restricted on private unit provides sandy beaches and Clatsop Plains include one breeding property, beach driving is permitted sparsely vegetated dunes for nesting as plover in 1983 and 1 wintering plover below MHW. Approximately 2/3 (about well as miles of surf-cast organic debris in 1985 (ODFW in litt. 1994). The 520 ac (210.4 ha)) of this unit is on and sheltered bays for foraging. The subunit consists of 65 ac (26 ha) of private property with the remainder combined dynamics of weather and surf federally owned land. The Oregon Parks (266 ac (107.6 ha)) on State park lands. cause large quantities of wood and shell and Recreation Department manages the Private property rights extend to the material to accumulate on the spit, subunit under a Department of Army mean low water line (MLW) in providing prime nesting habitat, hiding license. The primary threats that may Washington State. The conservation areas from predators, foraging require special management in this goal for Midway Beach is 30 adult opportunities, and shelter from subunit are introduced European breeding birds. Twenty-eight plovers beachgrass that encroaches on the inclement weather for plover broods. nested at this site during the 2003 available nesting and foraging habitat; The plover population at Leadbetter has breeding season, and the site has shown disturbance from humans, dogs, and off- a relatively high average annual been slowly increasing since monitoring highway vehicles (OHVs) in important production of 1.3 to 1.9 chicks per male began in 1993 and we consider the area foraging and nesting areas; and (WDFW in litt. 2003). capable of supporting up to 30 breeding predators such as the American crow plovers given appropriate management. and common raven. WA 4, Leadbetter Point/Gunpowder The primary threat is human Sands, 1,069 ac (433 ha) disturbance during spring razor clam Subunit OR 1B, Necanicum River Spit, The Leadbetter Point/Gunpowder season, which opens beaches to 78 ac (32 ha): (Unoccupied Area, Sands unit is located at the northern motorized vehicles and provides access Identified for Possible Inclusion) end of the Long Beach Peninsula, a 26- into plover nesting areas that normally This subunit is on the western coast mi (41.8-km) long spit that defines the receive limited human use. Beaches of Clatsop County, Oregon, next to the west side of Willapa Bay and extends south of the Refuge are open to public City of Gearhart and less than 1 mi (1.6 down to the mouth of the Columbia use. The State Parks department is km) north of the City of Seaside. It is River. The unit is located just north of considering posting areas being used by bounded by the Necanicum River the community of Ocean Park. The end plovers and increasing enforcement of estuary on the south, City of Gearhart to of the spit is within the Willapa the wet sand driving regulations the east, and the Pacific Ocean to the National Wildlife Refuge. The refuge (Service in litt. 2004). west. The subunit is characteristic of a jurisdiction extends to the mean high dune-backed beach adjacent to mud
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flats and an estuary. It includes the the available nesting and foraging mud flats (for foraging). The unit is following features essential to the habitat, disturbance from humans and considered unoccupied, although three conservation of the species: Wide sand dogs in important foraging and nesting breeding plovers were documented in spits or washovers relatively areas, and predators such as American this unit in 1982 (ODFW in litt. 1994). undisturbed by human or tidal activity crows and common ravens. The unit consists of 143 State-owned and sparsely vegetated (for nesting and acres (57.9 ha) managed by Oregon OR 3, Bayocean Spit, 207 ac (84 ha) foraging); areas of sandy beach above Parks and Recreation Department as and below the high-tide line with This unit is on the western coast of Cape Lookout State Park. The primary occasional surf-cast wrack supporting Tillamook County, Oregon, and about 8 threats that may require special small invertebrates (for foraging); and mi (12.9 km) northwest of the City of management in this subunit are close proximity to tidally influenced Tillamook. It is bounded by Tillamook introduced European beachgrass that estuarine mud flats (for foraging). This Bay on the east, the Tillamook Bay encroaches on the available nesting and subunit is part of a larger unit of the 17- South Jetty to the north, and the Pacific foraging habitat, disturbance from mi (27.4 km) Clatsop Plains that is Ocean to the west. The unit is humans and dogs in important foraging located between the Necanicum River to characteristic of a dune-backed beach in and nesting areas, and predators such as the south and the Columbia River to the close proximity to mud flats and an the common raven. north. Two breeding plovers were estuary. It includes the following OR 5. Sand Lake: (Unoccupied Area, documented in this subunit in 2002 features essential to the conservation of Identified for Possible Inclusion) (Lauten et al. in litt. 2003). This subunit the species (PCEs): large areas of sandy consists of 55 State-owned acres (22 ha) dune relatively undisturbed by human This unit includes two subunits, one and 23 city-owned acres (9 ha). The or tidal activity (for nesting and each on the north and south spits of Oregon Parks and Recreation foraging); areas of sandy beach above Sand Lake estuary. Most recently Department is the primary land and below the high tide line with documented plovers for the Sand Lake manager. Threats that may require occasional surf-cast wrack supporting unit include four breeding plovers in special management in this subunit are small invertebrates (for foraging); and 1986 (ODFW in litt. 1994). close proximity to tidally influenced introduced European beachgrass that Subunit OR 5A, Sand Lake North, 38 ac estuarine mud flats (for foraging). Two encroaches on the available nesting and (15.4 ha): (Unoccupied Area, Identified breeding plovers and one wintering foraging habitat; disturbance from for Possible Inclusion) humans, dogs, and OHVs in important plover were documented in this unit in foraging and nesting areas; and 1993 and 2000, respectively (ODFW in This subunit is on the southwestern predators such as American crow and litt. 1994; Service in litt. 2004). This unit coast of Tillamook County, Oregon, raccoons. contributes significantly to the about 7 miles (11.3 km) north of Pacific conservation goal for the region by City. It is bounded by the Sand Lake OR 2, Nehalem River Spit, 145 ac (59 providing habitat capable of supporting estuary to the south, the Siuslaw ha): (Unoccupied Area, Identified for 16 breeding plovers under proper National Forest’s Sand Lake National Possible Inclusion) management. The unit consists of 85 ac Recreation Area to the north, and the This unit is on the northwestern coast (34.4 ha) of federally owned land and Pacific Ocean to the west. The subunit of Tillamook County, Oregon next to the 122 ac (49.4 ha) of county-owned land. is characteristic of a dune-backed beach City of Manzanita and about 19 miles The primary threats that may require and sand spit in close proximity to mud (30.6 km) northwest of the City of special management in this unit are flats and an estuary. It includes the Tillamook. It is bounded by Nehalem introduced European beachgrass that following features essential to the Bay on the east, the City of Manzanita encroaches on the available nesting and conservation of the species: Wide sand to the north, and the Pacific Ocean to foraging habitat; disturbance from spits or washovers and sparsely the west. The unit is characteristic of a humans, dogs and horses in important vegetated areas of sandy dune relatively dune-backed beach and sand spit foraging and nesting areas; and undisturbed by human or tidal activity adjacent to mud flats and an estuary. It predators such as the common raven. (for nesting and foraging); areas of sandy includes the following features essential beach above and below the high tide OR 4, Netarts Spit, 143 ac (58 ha): to the conservation of the species: A line with occasional surf-cast wrack (Unoccupied Area, Identified for wide sand spit or washover area supporting small invertebrates (for Possible Inclusion) relatively undisturbed by human or foraging); and close proximity to tidally tidal activity and sparsely vegetated (for This unit is on the western coast of influenced mud flats (for foraging). The nesting and foraging); areas of sandy Tillamook County, Oregon, about 5 mi subunit consists of 38 county-owned beach above and below the high tide (8.0 km) southwest of the City of acres (15.4 ha). The primary threats that line with occasional surf-cast wrack Tillamook. It is bounded by the Pacific may require special management in this supporting small invertebrates (for Ocean to the west and Netarts Bay to the subunit are introduced European foraging); and close proximity to tidally east and the north. The unit is beachgrass that encroaches on the influenced estuarine mud flats (for characteristic of a dune-backed beach available nesting and foraging habitat, foraging). One breeding plover was and sand spit in close proximity to mud disturbance from humans and dogs in documented in this unit in 1984 (ODFW flats. It includes the following features important foraging and nesting areas, in litt. 1994). This unit provides habitat essential to the conservation of the and predators such as American crows capable of supporting four breeding species: Wide sand spits or washovers and common ravens. plovers under proper management. The and large areas of sandy dune relatively unit consists of 145 State-owned acres undisturbed by human or tidal activity Subunit OR 5B, Sand Lake South, 104 (58.7 ha) and is managed by the Oregon and sparsely vegetated (for nesting and ac (42.1 ha): (Unoccupied Area, Parks and Recreation Department as part foraging); areas of sandy beach above Identified for Possible Inclusion) of the Nehalem Bay State Park. The and below the high tide line with This subunit is on the southwestern primary threats that may require special occasional surf-cast wrack supporting coast of Tillamook County, Oregon, management in this unit are introduced small invertebrates (for foraging); and about 7 mi (11.3 km) north of Pacific European beachgrass that encroaches on close proximity to tidally influenced City. It is bounded by the Pacific Ocean
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to the west and the Sand Lake estuary OR 7, Sutton/Baker Beaches, 260 ac subunit include an average of six to the north and east. The subunit is (105.2 ha) breeding plovers in 2003 and 20 characteristic of a dune-backed beach This unit is on the western coast of wintering plovers in 2004 (Lauten et al. and sand spit in close proximity to mud Lane County, Oregon, about 8 mi (12.9 in litt. 2003; Service in litt. 2004). This flats and an estuary. It includes the km) north of the City of Florence. It is subunit, in conjunction with subunit OR following features essential to the bounded by Sutton Creek to the south, 8B, below, is capable of supporting 20 conservation of the species: Wide sand Heceta Head to the north, and the breeding plovers under proper spits or washovers and sparsely Pacific Ocean to the west. The unit is management. The subunit consists of vegetated areas of sandy dune relatively characteristic of a dune-backed beach 188 federally owned acres (76.1 ha) undisturbed by human or tidal activity and wide sand spits with overwash managed by the U.S. Forest Service as (for nesting and foraging); areas of sandy areas. It includes the following features the Oregon Dunes National Recreation beach above and below the high tide essential to the conservation of the Area in the Siuslaw National Forest. line with occasional surf-cast wrack species: large areas of sandy dunes or The primary threats that may require supporting small invertebrates (for sand spit overwashes relatively special management in this subunit are foraging); and close proximity to tidally undisturbed by human or tidal activity introduced European beachgrass that influenced mud flats (for foraging). The (for nesting and foraging) and areas of encroaches on the available nesting and subunit consists of 104 privately owned sandy beach above and below the high foraging habitat; disturbance from acres (42.1 ha). The primary threats that tide line with occasional surf-cast wrack humans, dogs and OHVs in important may require special management in this supporting small invertebrates (for foraging and nesting areas; and subunit are introduced European foraging). Most recently documented beachgrass that encroaches on the predators such as the American crow plovers for this unit include an average and common raven. available nesting and foraging habitat; of 2 breeding plovers in 2003 and 8 disturbance from humans, dogs, and wintering plovers in 2004 (Lauten et al. Subunit OR 8B, Dunes Overlook/ OHVs in important foraging and nesting in litt. 2003; Service in litt. 2004). This Tahkenitch Creek Spit, 375 ac (151.8 areas; and predators such as the unit is capable of supporting 12 ha). common raven. breeding plovers under proper This subunit is on the northwestern OR 6, Nestucca River Spit, 147 ac (59.5 management. The unit consists of 260 coast of Douglas County, Oregon, about ha): (Unoccupied Area, Identified for federally owned ac (105.2 ha) managed Possible Inclusion) by the U.S. Forest Service in Siuslaw 10 mi (16.1 km) northwest of the City National Forest. The primary threats of Reedsport. It is bounded by This unit is on the southwestern coast that may require special management in Tahkenitch Creek to the south, Carter of Tillamook County, Oregon, next to this unit are introduced European Lake to the north and the Pacific Ocean Pacific City and about 20 mi (32.2 km) beachgrass that encroaches on the to the west. The subunit is characteristic southwest of the City of Tillamook. It is available nesting and foraging habitat; of a dune-backed beach and sand spit. bounded by Pacific City to the north, disturbance from humans, dogs and It includes the following features Nestucca Bay to the east and south, and horses in important foraging and nesting essential to the conservation of the the Pacific Ocean to the west. The unit areas; and predators such as the species: wide sand spits or washovers is characteristic of a dune-backed beach American crow and common raven. and sparsely vegetated areas of sandy and sand spit in close proximity to mud dune relatively undisturbed by human OR 8. Siltcoos to Tenmile flats and an estuary. It includes the or tidal activity (for nesting and following features essential to the This unit includes four subunits, all foraging); areas of sandy beach above conservation of the species: Wide sand within five miles of each other in Lane, and below the high tide line with spits or washovers relatively Douglas and Coos Counties, Oregon. occasional surf-cast wrack supporting undisturbed by human or tidal activity small invertebrates (for foraging); and and sparsely vegetated (for nesting and Subunit OR 8A, Siltcoos River Spit, 188 ac (76.1 ha) close proximity to tidally influenced foraging); areas of sandy beach above freshwater areas (for foraging). Most and below the high tide line with This subunit is on the southwestern recently documented plovers for this occasional surf-cast wrack supporting coast of Lane County, Oregon, about 7 subunit include an average of seven small invertebrates (for foraging); and mi (11.3 km) southwest of the City of breeding plovers in 2003 and one close proximity to tidally influenced Florence. It includes the sand spits to wintering plover in 2000 (Lauten et al. estuarine mud flats (for foraging). Most the north and south of the Siltcoos River in litt.; 2003; Service in litt. 2004). This recently documented plovers for this and is bounded by the Pacific Ocean to subunit is capable of supporting 20 unit include 2 breeding plovers in 1988 the west. The subunit is characteristic of (ODFW in litt. 1994). We therefore a dune-backed beach and sand spit in breeding plovers in conjunction with consider this unit to be currently close proximity to a tidally influenced subunit OR 8A (above) under proper unoccupied. The unit consists of 147 river mouth. It includes the following management. The subunit consists of State-owned acres (59.5 ha) and is features essential to the conservation of 375 federally owned acres (151.8 ha) managed by the Oregon Parks and the species: Wide sand spits or managed by the U.S. Forest Service as Recreation Department as Robert W. washovers and sparsely vegetated areas the Oregon Dunes National Recreation Straub State Park. The primary threats of sandy dune relatively undisturbed by Area. The primary threats that may that may require special management in human or tidal activity (for nesting and require special management in this this subunit are introduced European foraging); areas of sandy beach above subunit are introduced European beachgrass that encroaches on the and below the high tide line with beachgrass that encroaches on the available nesting and foraging habitat; occasional surf-cast wrack supporting available nesting and foraging habitat; disturbance from humans, dogs and small invertebrates (for foraging); and disturbance from humans, dogs and horses in important foraging and nesting close proximity to tidally influenced OHVs in important foraging and nesting areas; and predators such as American freshwater areas (for foraging). Most areas; and predators such as the crows and common ravens. recently documented plovers for this American crow and common raven.
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Subunit OR 8C, North Umpqua River beachgrass that encroaches on the and sparsely vegetated areas of sandy Spit, 111 ac (44.9 ha): (Unoccupied available nesting and foraging habitat; dune relatively undisturbed by human Area, Identified for Possible Inclusion) disturbance from humans and dogs in or tidal activity (for nesting and This subunit is on the western coast important foraging and nesting areas; foraging); areas of sandy beach above of Douglas County, Oregon, about 5 mi, and predators such as the American and below the high tide line with (8.0 km) west of the City of Reedsport. crow and common raven. occasional surf-cast wrack supporting small invertebrates (foraging); and close It is bounded by the Umpqua River OR 9, Coos Bay North Spit, 278 ac proximity to tidally influenced North Jetty to the south and the Pacific (112.5 ha) freshwater areas (for foraging). The most Ocean to the west. The subunit is This unit is on the western coast of characteristic of a dune-backed beach. It recently documented plovers for this Coos County, Oregon, about 5 mi (8.0 subunit include an average of 15 includes the following features essential km) west of the City of Coos Bay. It is breeding and 18 wintering plovers in to the conservation of the species: areas bounded by Coos Bay to the east, the 2003 (Lauten et al. in litt. 2003; Service of sandy beach above and below the Coos Bay North Jetty to the south, and in litt. 2004). This subunit is capable of high tide line with occasional surf-cast the Pacific Ocean to the west. The unit supporting 54 breeding plovers under wrack supporting small invertebrates is characteristic of a dune-backed beach proper management. The subunit (for nesting and foraging). This subunit and interior interdune flats created consists of 321 ac (129.9 ha) of federally is capable of supporting four breeding through dredge material disposal or owned land, 184 ac (75 ha) of State- plovers under proper management. The through habitat restoration. It includes owned land, 12 ac of county-owned subunit consists of 74 ac (29.9 ha) of the following features essential to the land (5 ha), and 163 ac (66 ha) of federally owned land and 37 ac (15 ha) conservation of the species (PCEs): privately owned land. The Bureau of of State-owned land. The primary land Expansive sparsely vegetated interdune Land Management and the Oregon Parks manager is the U.S. Forest Service for flats (for nesting and foraging); areas of and Recreation Department are the the Oregon Dunes National Recreation sandy beach above and below the high unit’s primary land managers. Threats Area. Threats that may require special tide line with occasional surf-cast wrack that may require special management in management in this subunit are supporting small invertebrates (for this subunit are introduced European introduced European beachgrass that nesting and foraging); and close beachgrass that encroaches on the encroaches on the available nesting and proximity to tidally influenced available nesting and foraging habitat; foraging habitat; disturbance from OHVs estuarine areas (for foraging). The most disturbance from humans, dogs, horses in important foraging and nesting areas; recently documented plovers for this and OHVs in important foraging and and predators such as the American unit include an average of 17 breeding nesting areas; and predators such as the crow and common raven. and 3 wintering plovers in 2003 (Lauten common raven and red fox. et al. in litt. 2003; Service in litt. 2004). Subunit OR 8D, Tenmile Creek Spit, 235 Subunit OR 10B, Sixes River Spit, 73 ac ac (95.1 ha) This unit contributes significantly to the regional conservation goal by providing (29.5 ha): (Unoccupied Area, Identified for Possible Inclusion) This subunit is on the northwestern habitat capable of supporting 54 coast of Coos County, Oregon, about 12 breeding plovers under proper This subunit is on the northwestern mi, (19.3 km) southwest of the City of management. The unit consists of 278 coast of Curry County, Oregon, about 8 Reedsport. It includes the sand spits and federally owned acres (112.5 ha) mi (12.9 km) northwest of the City of beaches to the north and south of the primarily managed by the Bureau of Port Orford and just north of Cape Tenmile River and is bounded by the Land Management. Threats that may Blanco. It includes the sand spits to the Pacific Ocean to the west. The subunit require special management in this unit north and south of the Sixes River and is characteristic of a dune-backed beach are introduced European beachgrass that is bounded by the Pacific Ocean to the and sand spit. It includes the following encroaches on the available nesting and west. The subunit is characteristic of a features essential to the conservation of foraging habitat; disturbance from dune-backed beach and sand spit in the species: Wide sand spits or humans, dogs and OHVs in important close proximity to a tidally influenced washovers and sparsely vegetated areas foraging and nesting areas; and river mouth. It includes the following of sandy dune relatively undisturbed by predators such as the American crow features essential to the conservation of human or tidal activity (for nesting and and common raven. the species: Wide sand spits or foraging); areas of sandy beach above washovers and sparsely vegetated areas and below the high tide line with OR 10, Bandon/Cape Blanco Area of sandy dune relatively undisturbed by occasional surf-cast wrack supporting This unit consists of three subunits human or tidal activity (for nesting and small invertebrates (for nesting and within five miles of each other near the foraging); areas of sandy beach above foraging); and close proximity to tidally town of Bandon, in Coos and Curry and below the high tide line with influenced freshwater areas (for Counties, Oregon. occasional surf-cast wrack supporting foraging). The most recently small invertebrates (for foraging); and documented plovers for this subunit Subunit OR 10A, Bandon to Floras Lake, close proximity to tidally influenced include an average of 10 breeding and 680 ac (275.2 ha) freshwater areas (for foraging). No eight wintering plovers in 2003 (Lauten This subunit is on the southwestern plover use has been documented for this et al. in litt. 2003; Service in litt. 2004). coast of Coos County, Oregon, about 4 unit, which may be attributed to little, This subunit is capable of supporting 20 mi (6.4 km) south of the City of Bandon. if any, historic survey effort. This breeding plovers under proper It is bounded by China Creek to the subunit is capable of supporting 4 management. The subunit consists of north, the New River to the east, Floras breeding plovers under proper 235 federally owned acres (95.1 ha) Lake to the south, and the Pacific Ocean management. The subunit consists of 73 managed as the Oregon Dunes National to the west. The subunit is characteristic State-owned acres (29.5 ha) managed by Recreation Area by the U.S. Forest of a dune-backed beach and barrier spit. Oregon Parks and Recreation Service. The primary threats that may It includes the following features Department. The primary threats that require special management in this essential to the conservation of the may require special management in this subunit are introduced European species: wide sand spits or washovers subunit are introduced European
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beachgrass that encroaches on the Pacific Coast WSP have been include sandy beaches above and below available nesting and foraging habitat; documented using the area in recent the mean high tide line, wind-blown disturbance from humans and dogs in years, so we consider it to be currently sand in dune systems immediately important foraging and nesting areas; unoccupied. The unit consists of 75 inland of the active beach face, and the and predators such as the common privately owned acres (30.4 ha). The washover area at the lagoon mouth. The raven. primary threats that may require special Lake Earl unit is a historical breeding Subunit OR 10C, Elk River Spit, 88 ac management in this unit are European site, and has had a small population of (35.6 ha): (Unoccupied Area, Identified beachgrass that encroaches on the wintering plovers in recent years for Possible Inclusion) available nesting and foraging habitat; (Watkins, pers. comm. 2004). We expect disturbance from humans and dogs in this unit to be able to support ten This subunit is on the northwestern important foraging and nesting areas; coast of Curry County, Oregon, about 4 breeding plovers with proper and predators such as the common management. The unit contains 90.8 ac mi (6.4 km) northwest of the City of Port raven and red fox. Orford and just south of Cape Blanco. It (36.7 ha) total. Approximately 12.9 ac is bounded by the Elk River to the east OR 12, Pistol River Spit, 116 ac (46.9 (5.2 ha) are managed by the State under and north, and the Pacific Ocean to the ha): (Unoccupied Area, Identified for the jurisdiction of the California west. The subunit is characteristic of a Possible Inclusion) Department of Fish and Game, with the dune-backed beach and sand spit in This unit is on the southwestern coast remaining 77.9 ac (31.5 ha) in private close proximity to a tidally influenced of Curry County, Oregon, about 12 mi ownership. The unit is approximately 3 river mouth. It includes the following (19.3 km) south of the City of Gold mi (4.8 km) in length. Degradation of the features essential to the conservation of Beach. It is bounded by the Pistol River sand dune system has resulted from the the species: Wide sand spits or to the east and north, and the Pacific encroachment of European beachgrass. washovers and sparsely vegetated areas Ocean to the west. The unit is Off-road vehicle (OHV) use is the of sandy dune relatively undisturbed by characteristic of a dune-backed beach greatest threat to wintering and nesting human or tidal activity (for nesting and and sand spit in close proximity to a plovers using the unit. The U.S. Army foraging); areas of sandy beach above tidally influenced river mouth. It Corps of Engineers authorizes the and below the high tide line with includes the following features essential mechanical breach of the Lake Earl/Lake occasional surf-cast wrack supporting to the conservation of the species: Wide Tolowa lagoon on an annual basis. small invertebrates (for foraging); and sand spits or washovers and sparsely Monitoring indicates that the practice of close proximity to tidally influenced vegetated areas of sandy dune relatively breaching has only temporary, short- freshwater areas (for foraging). This undisturbed by human or tidal activity term effects to wintering plovers. subunit is capable of supporting four (for nesting and foraging); areas of sandy breeding plovers under proper beach above and below the high tide CA 2, Big Lagoon, 280 ac (113 ha) management. The subunit consists of 88 line with occasional surf-cast wrack privately owned acres (35.6 ha). The This unit consists of a large sand spit supporting small invertebrates (for that divides the Pacific Ocean from Big primary threats that may require special foraging); and close proximity to tidally management in this subunit are Lagoon. The northern extent of the Big influenced freshwater areas (for Lagoon spit is approximately three mi introduced European beachgrass that foraging). The unit is not considered to (4.8 km) south of the Town of Orick. encroaches on the available nesting and be currently unoccupied, as the most The unit contains the following features foraging habitat; disturbance from recently documented plover in the area essential to the conservation of the humans, dogs and OHVs in important was one wintering plover in 1978 foraging and nesting areas; and (Wilson 1980). The unit consists of 116 Pacific Coast WSP (PCEs): Low lying predators such as the common raven State-owned acres (46.9 ha) managed by sandy dunes and open sandy areas that and red fox. the Oregon Parks and Recreation are relatively undisturbed by humans; OR 11, Euchre Creek Spit, 75 ac (30.4 Department as the Pistol River State sandy beach above and below the high ha): (Unoccupied Area, Identified for Park. The primary threats that may tide line that supports small Possible Inclusion) require special management in this unit invertebrates; and areas of overwash. are introduced European beachgrass that The Big Lagoon spit is historical nesting This unit is on the western coast of habitat, and currently maintains a Curry County, Oregon, about 12 mi (19.3 encroaches on the available nesting and winter population of fewer than 10 km) north of the City of Gold Beach. It foraging habitat; disturbance from plovers (Watkins, pers. comm. 2001). includes the sand spits to the north and humans, dogs and horses in important We estimate the unit can support 16 south of the Euchre River and is foraging and nesting areas; and breeding plovers. The unit is located on bounded by the Pacific Ocean to the predators such as the American crow west. The unit is characteristic of a and common raven. the spit, which is approximately 3.8 mi (6.1 km) in length. Most of the unit dune-backed beach and sand spit in California close proximity to a tidally influenced (279.2 ac, 113.0 ha) is managed by the river mouth. It includes the following CA 1, Lake Earl, 91 ac (37 ha) California Department of Parks and features essential to the conservation of This unit is located directly west of Recreation (CA State Parks). An the species: Wide sand spits or the Lake Earl/Lake Tolowa lagoon additional 0.6 ac (0.26 ha) are Humboldt washovers and sparsely vegetated areas system and the proposed Pacific Shores County-managed. State Parks has of sandy dune relatively undisturbed by housing development. The unit extends conducted habitat restoration at this human or tidal activity (for nesting and from the lagoon breach site in the south, unit through the hand-removal of non- foraging); areas of sandy beach above to Kellogg Road at the unit’s northern native vegetation. The primary threat to and below the high tide line with end. The Lake Earl lagoon lies wintering and breeding plovers that may occasional surf-cast wrack supporting approximately 2 miles (3.2 km) north of require special management is the small invertebrates (for foraging); and Point Saint George and the McNamara disturbance from humans and dogs close proximity to tidally influenced Airfield. Essential features of the unit walking through winter flocks and freshwater areas (for foraging). No for Pacific Coast WSP conservation potential nesting areas.
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CA 3, McKinleyville Area intermix with plovers in CA 3A of sandy, sparsely vegetated dunes for This unit consists of two subunits in (Colwell, et al. 2003). Occasional winter reproduction and foraging, and areas of the vicinity of McKinleyville, California, use by plovers has been intermittently sandy beach above and below the high in Humboldt County. documented, with most wintering tide line supporting small invertebrates within the adjacent critical habitat unit for foraging. Driftwood is an important CA 3A, Clam Beach/Little River, 155 ac to the north (Hall, pers. comm. 2003). component of the habitat in this (63 ha) The primary threats to nests, chicks, and subunit, providing shelter from the The Little River/Clam Beach subunit’s both wintering and breeding adult wind both for nesting plovers and for northern boundary is directly across plovers are OHV use, and disturbance invertebrate prey species. The subunit’s from the south abutment of the U.S. caused by equestrians and humans with winter population of plovers is Highway 101 bridge that crosses the accompanying dogs. estimated at less than 20 (LeValley, 2004). As many as 11 breeders have Little River. The southern subunit CA 4, Eel River Area boundary is aligned with the north end been observed during breeding season This unit consists of four subunits, window surveys, with a breeding of the southernmost, paved Clam Beach one each on the north and south spits parking area. The length of the unit is population estimated at less than 15 of the mouth of the Eel River, one for (Colwell, et al. 2003). We expect this approximately 1.8 mi (2.8 km). Essential the Eel River gravel bars supporting subunit to eventually support 20 features of the subunit that contribute nesting plovers about five to ten miles breeding plovers with proper towards the conservation of the Pacific inland, and one extending from the management. Threats include predators, Coast WSP include large areas of sandy south spit of Humboldt Bay to the beach OHVs, and disturbance from equestrians dunes, areas of sandy beach above and adjacent to the north Eel River spit and humans with dogs. below the high tide line, and generally subunit. barren to sparsely vegetated terrain. The Subunit CA 4C, Eel River South Spit subunit currently supports a breeding Subunit CA 4A, Humboldt Bay, South and Beach, 402 ac (163 ha) Spit Beach, 375 ac (152 ha) population of approximately 12 plovers, This subunit encompasses the beach and a winter population of up to 55 This subunit is located across segment from the mouth of the Eel plovers (Colwell, et al. 2003). It has Humboldt Bay, less than one mile (<1.6 River, south to Centerville Road, developed into one of four primary km) west of the City of Eureka, with the approximately 4 miles (6.4 km) west of nesting locations within northern southern boundary being Table Bluff. the Town of Ferndale. The subunit is 5 California. We expect the subunit to be Three hundred forty-four acres (139.3 miles (8.3 km) long. 397.1 acres (160.7 able to support six breeding plovers. ha) of the unit are owned by the ha) are private, and the remaining 4.4 ac The primary threats to nests, chicks, and California Department of Fish and (1.8 ha) are managed by Humboldt both wintering and breeding adult Game, but are managed by the Federal County. Essential features of the subunit plovers in this subunit are OHV use, Bureau of Land Management, 10.1 ac include: large areas of sandy dunes, predators, and disturbance caused by (4.1 ha) are owned and managed by the areas of sandy beach above and below humans and dogs. Of the total 154.9 ac County of Humboldt, and 20.2 ac (8.2 the high tide line, and generally barren (62.7 ha), approximately 81.5 acres (33 ha) are owned by the U.S. Army Corps to sparsely vegetated terrain. This ha) are under the jurisdiction of the CA of Engineers. The subunit is 4.8 mi (7.7 subunit is capable of supporting 20 State Parks, 24.1 acres (9.8 ha) are in km) in total length. The following breeding plovers. A single nest was private ownership, and 49.5 acres (20 features essential to the conservation of found during the 2004 breeding season ha) are under the ownership and the Pacific Coast WSP can be found (McAllister, pers. comm. 2004). The management of Humboldt County. within the unit: large areas of sandy winter population is estimated at under CA 3B, Mad River Beach, 377 ac (153 dunes, areas of sandy beach above and 80 plovers, many of which breed on the ha) below the high tide line, and generally Eel River gravel bars (CA 5) (McAllister, barren to sparsely vegetated terrain. The pers. comm. 2003, Transou, pers. comm. This subunit was largely swept clean plover wintering population is 2003). Threats include predators, OHVs, of European beachgrass when the Mad estimated at under 15 individuals, and and disturbance from equestrians and River temporarily shifted north in the three nests, from 4 breeders, were humans with dogs. 1980’s and 1990’s. The Mad River Beach attempted within the subunit in 2003 Subunit CA 4D, Eel River Gravel Bars, subunit is approximately 2.8 mi (4.5 (Colwell, et al. 2003). This subunit is 1,193 ac (483 ha) km) long, and ranges from the U.S. capable of supporting 30 breeding Highway 101 Vista Point below the plovers. The Bureau of Land This subunit is inundated during Arcata Airport in the north, to School Management has conducted habitat winter months due to high flows in the Road in the south. One hundred sixty- restoration within the subunit, in Eel River. It is 6.4 miles (10.3 km) from one acres (65 ha) are owned and consultation with us. The primary the Town of Fernbridge, upstream to the managed by Humboldt County, and threats to adult plovers, chicks, and confluence of the Van Duzen River. The 216.5 (87.6 ha) are privately owned. nests, are OHV use, and disturbance Eel River is contained by levees in this Essential features of the subunit that from equestrians and humans with dogs. section, and consists of gravel bars and contribute towards the conservation of wooded islands. The subunit contains a the Pacific Coast WSP include large Subunit CA 4B, Eel River North Spit total of 1,192.8 acres (482.7 ha), of areas of sandy dunes, areas of sandy and Beach, 283 ac (114 ha) which 176.3 ac (71.3 ha) are owned and beach above and below the high tide This subunit stretches from Table managed by Humboldt County, 79.1 ac line, and generally barren to sparsely Bluff on the north to the mouth of the (32 ha) are under the jurisdiction of the vegetated terrain. We expect the subunit Eel River in the south. The subunit is California State Lands Commission, and to eventually support 12 breeding estimated to be 3.9 miles (6.3 km) long, 937.5 ac (379.4 ha) are privately owned. plovers with proper management. The and is managed by the California Essential features of this subunit current breeding population is believed Department of Fish and Game, except include: bare open gravel bars to be less than 5 plovers, although for five acres of private land. Essential comprised of both sand and cobble, plovers from this subunit readily features of the unit include: large areas which support reproduction and
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foraging. The Eel River gravel bars are CA 7, Dillon Beach, 30 ac (12 ha) for nesting and foraging, and tide-cast the most important breeding habitat in This unit is located at the mouth of debris supporting small invertebrates. California north of San Francisco Bay, Tomales Bay, just south of the town of Threats that may require special and have the highest fledging success Dillon Beach. It stretches for about 1.25 management include disturbance by rate of any areas from Mendocino mi (2.01 km) north from Sand Point. humans and pets, and nest predators such as crows and ravens. County to the Oregon border. This PCEs provided by the unit include surf- subunit is capable of supporting 40 cast debris supporting small CA 10, Half Moon Bay, 37 ac (15 ha) breeding plovers. Twenty-two breeding invertebrates for foraging, and large This unit stretches for about 1.25 mi birds were recorded in this subunit stretches of relatively undisturbed, during recent window surveys (2.01 km) along Half Moon Bay State sparsely vegetated sandy beach, both Beach, and is entirely within California (LeValley, pers. comm. 2004). Threats above and below high tide line, for include predators, OHVs, and State Parks land. It includes sandy foraging and potentially for nesting. beach above and below the high tide disturbance from gravel mining and Although nesting has not been noted humans with dogs. line for nesting and foraging, and surf- here, the unit is an important wintering cast debris to attract small invertebrates. CA 5, MacKerricher Beach, 1,048 ac area. One hundred twenty three Small numbers of breeding birds have (424 ha) wintering plovers were counted at this been found at the location in the past spot during the last winter survey in three surveys, including four breeding This unit is approximately 3.5 miles January 2004 (Page in litt. 2004). Other birds in the most recent survey, (5.5 km) long. The unit is just south of than State lands intermittently exposed conducted in 2003 (Page in litt. 2003). the Ten Mile River, and approximately below mean high tide, the unit is The unit also supports a sizeable winter 4 miles (6.4 km) north of the City of Fort entirely on private land. Potential flock, which was 65 birds in 2004 (Page Bragg. 1,017.2 acres (411.6 ha) are threats that may require special in litt. 2004). We expect the unit to managed by CA State Parks, and 31.2 management include predators and eventually support ten breeding birds in acres (12.6 ha) are private. Essential disturbance by humans and their pets. the unit under proper management, features of the unit include: large areas CA 8, Pt. Reyes Beach, 462 ac (187 ha) which makes it a potentially significant of sandy dunes, areas of sandy beach contributor to plover conservation. above and below the high tide line, and This unit occupies most of the west- Potential threats in the area that may generally barren to sparsely vegetated facing beach between Point Reyes and require special management include terrain. State Parks has been conducting Tomales Point. It is located entirely disturbance by humans and pets, and removal of European beachgrass to within the Point Reyes National nest predators. improve habitat for the Pacific Coast Seashore, and consists primarily of CA 11. Santa Cruz Coast WSP and other sensitive dune species dune backed beaches. The unit includes within the unit. This unit is capable of the following PCEs essential to plover This unit consists of three relatively supporting 20 breeding plovers. The conservation: sparsely vegetated sandy small pocket beaches in Santa Cruz current breeding population is beach above and below high tide for County, California. The unit forms an estimated at less than 10 (Colwell, et al. nesting and foraging, wind-blown sand important link between larger breeding 2003). The winter population of plovers dunes for nesting and predator beaches to the north and south, such as is under 45 (Cebula, pers. comm. 2004). avoidance, and tide-cast debris Half Moon Bay and the Monterey Bay Threats to nests, chicks and both attracting small invertebrates for beaches. wintering and breeding adults include foraging. It supports both nesting and wintering plovers, and can support 50 Subunit CA 11A, Waddell Creek Beach, predators and disturbance from 9 ac (4 ha): (Unoccupied Area, equestrians and humans with dogs. breeding birds with proper management. Threats in the area that Identified for Possible Inclusion) CA 6, Manchester Beach, 341 ac (138 may require special management This subunit includes the mouth of ha) include disturbance by humans and Waddell Creek and is located about 20 pets, and predators (particularly ravens mi (32.2 km) north of the city of Santa The Manchester Beach unit is and crows). Cruz. It extends about 0.7 mi (1.1 km) approximately 3.5 miles (5.7 km) in north along the coast from a point about length. California State Parks manages CA 9, Limantour Spit, 124 ac (50 ha) 0.1 mi (0.2 km) south of the creek mouth 336.2 ac (136.1 ha) of the unit, while the Limantour Spit is a roughly 2.25 mile to a point about 0.6 mi (0.4 km) north remaining 4.8 ac (1.9 ha) are private. (4.0 km) sand spit at the north end of of the creek. The area provides several Essential features of the unit include: Drake’s Bay. The unit includes the end essential habitat features, including large areas of sandy dunes, areas of of the spit, and contracts to include only wind-blown sand dunes, areas of sandy sandy beach above and below the high the south-facing beach towards the base beach above and below the high tide tide line, and generally barren to of the spit. It is completely within the line with occasional surf-cast wrack sparsely vegetated terrain. This unit Point Reyes National Seashore. CA 10 supporting small invertebrates (for provides an important wintering site for can support both nesting and wintering nesting and foraging) and generally the region (Service 2001). In 2003, a pair plovers, although nesting has not been barren to sparsely vegetated terrain (for of plovers nested within the unit, and documented since 2000 (Page in litt. foraging and predator avoidance). With successfully hatched 2 chicks. However, 2003, 2004). Ninety-five wintering proper management, and in conjunction those chicks did not survive (Colwell, et plovers were counted at the site during with the other two small units proposed al. 2003). The current wintering the January 2004 survey (Page in litt. for Santa Cruz County (CA 11B and population is estimated at less than 20 2004). The unit is expected to contribute 11C), this subunit can attract additional (Cebula, pers. comm. 2004). Threats to significantly to plover conservation in nesting plovers and thereby facilitate nests, chicks and both wintering and the region by providing habitat capable genetic interchange between the larger breeding adults include predators and of supporting ten nesting birds. PCEs at units at Half Moon Bay (CA 10) and disturbance from equestrians and the unit include sparsely vegetated Palm Beach and Moss Landing (CA 12) humans with dogs. beach sand, above and below high tide (see Criterion 3, Methods section,
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above). CA 11A encompasses subunit is entirely situated on State- tide line with occasional surf-cast wrack approximately 8.1 ac (3.3 ha) of State owned land. Disturbance from humans supporting small invertebrates (for land and 1.3 ac (0.5 ha) of private land. and pets, development, OHV use, pets, nesting and foraging) and generally Human disturbance is the primary and predators are the primary threats to barren to sparsely vegetated terrain (for threat to plovers in the subunit that snowy plovers in this subunit that may foraging and predator avoidance). The might require special management. require special management. subunit is situated entirely on State- owned land. Human disturbance, Subunit CA 11B, Scott Creek Beach, 19 CA 12. Monterey Bay Beaches development, horses, OHV use, pets, ac (8 ha) This unit includes three subunits predators, and vegetation are the This subunit includes the mouths of within Monterey Bay, California, primary threats to snowy plovers in this Scott and Molino creeks and is located including parts of Santa Cruz and subunit that may require special about 13 mi (20.9 km) north of the city Monterey Counties. Two of the subunits management. of Santa Cruz. It extends about 0.7 mi are stretches of beach, while the third (1.1 km) north along the coast from the (CA 12B) includes a wetland adjacent to Subunit CA 12C, Monterey to Moss southern end of the sandy beach (0.3 mi the shore. Landing, 803 ac (325 ha) (0.5 km) south of Molino Creek) to a CA 12C includes the beaches along Subunit CA 12A, Jetty Rd to Aptos, 272 point about 0.1 mi (0.4 km) north of the southern half of Monterey Bay from ac (110 ha) Scott Creek. Recent surveys have found the city of Monterey at the south end of from 12 (in 2000) to 1 (in 2004) nesting This subunit is about 5 mi (8 km) west the subunit to Moss Landing and the plovers occupying the area (Page in litt. of the city of Watsonville and includes mouth of Elkhorn Slough at the north 2004), and it is an important snowy Sunset and Zmudowski State beaches. end of the unit. The mouth of the plover wintering area, with up to 114 The mouth of the Pajaro River is located Salinas River is located near the center birds each winter (Page in litt. 2004). near the center of the unit, and Elkhorn of the unit. It extends about 15 mi (24.2 This subunit is essential to the Slough is at the south end of the unit. km) north along the coast from conservation of the species because with It extends about 8.5 mi (13.7 km) north Monterey to Moss Landing. This is an proper management, and in conjunction along the coast from Elkhorn Slough to important nesting area, with 61 to 104 with the other two small units proposed Zils Road. This is an important snowy nesting birds each year, and is also an for Santa Cruz County (CA 11B and plover nesting area, with 8–38 birds important snowy plover wintering area, 11C), it can attract additional nesting nesting each year, and is also an with up to 190 birds each winter (Page plovers and thereby facilitate genetic important wintering area, with up to in litt. 2004, Stenzel in litt. 2004). This interchange between the larger units at 250 birds each winter (Page in litt. subunit is capable of supporting 162 Half Moon Bay (CA 10) and Palm Beach 2004). This subunit is capable of breeding birds under proper and Moss Landing (CA 12) (see Criterion supporting 54 breeding birds under management. It includes the following 3, Methods section, above). The subunit proper management. It includes the habitat features essential to the species: includes the following habitat features following features essential to the areas of sandy beach above and below essential to the species: Areas of sandy species: Areas of sandy beach above and the high tide line with occasional surf- beach above and below the high tide below the high tide line with occasional cast wrack supporting small line with occasional surf-cast wrack surf-cast wrack supporting small invertebrates (for nesting and foraging) supporting small invertebrates (for invertebrates (for nesting and foraging) and generally barren to sparsely nesting and foraging) and generally and generally barren to sparsely vegetated terrain (for foraging and barren to sparsely vegetated terrain (for vegetated terrain (for foraging and predator avoidance). CA 12C includes foraging and predator avoidance). CA 13 predator avoidance). CA 12A exists approximately 792.2 ac (320.6 ha) of is situated entirely on private land. entirely on State lands. Human State and local lands, and 10.4 ac (4.2 Human disturbance and predators are disturbance, development, horses, OHV ha) of Federal land. It would include an the primary threats to snowy plovers in use, pets, predators, and dune- additional 142 ac (57.5 ha) of Federal this subunit that may require special stabilizing vegetation such as European land in the Salinas River National management. beachgrass are the primary threats to Wildlife Refuge, but we are excluding snowy plovers in this subunit that may that area based on the existence of a Subunit CA 11C, Wilder Creek Beach, require special management. Comprehensive Conservation Plan for 10 ac (4 ha) Salinas River NWR that has undergone Subunit CA 12B, Elkhorn Slough This subunit is located at the mouth section 7 consultation (see Exclusions Mudflats, 281 ac (114 ha) of Laguna Creek and is about 8 mi (12.9 section, below). Human disturbance, km) north of the city of Santa Cruz. It CA 12B is about 3.5 mi (5.6 km) north development, horses, OHV use, pets, extends about 0.5 mi (0.3 km) north of the city of Castroville along the north predators, and habitat changes resulting along the coast from the southern end of side of Elkhorn Slough east of Highway from exotic vegetation are the primary the sandy beach to the northern end of 1. It extends about 1 mi (1.6 km) along threats to snowy plovers in this subunit the beach across the mouth of Laguna the north shore of Elkhorn Slough east that may require special management. Creek. Five nesting plovers were found of Highway 1 and about 0.5 mi (0.8 km) in the area in 2000 (Page in litt. 2004). north from Elkhorn Slough to Bennett CA 13, Point Sur Beach, 61 ac (25 ha) The subunit includes the following Slough. This is an important nesting This unit is about 17 mi (27.4 km) essential features: Areas of sandy beach area, with 6–47 birds nesting each year, south of the city of Monterey and above and below the high tide line with and is also an important wintering area, immediately north of Point Sur. It occasional surf-cast wrack supporting with up to 95 birds each winter (Page in extends about 1 mi (1.6 km) north along small invertebrates (for nesting and litt. 2004, Stenzel in litt. 2004). This the coast from Point Sur. This is an foraging) and generally barren to subunit is capable of supporting 80 important snowy plover wintering area, sparsely vegetated terrain (for foraging breeding birds under proper with up to 65 birds each winter (Page in and predator avoidance). CA 11C is management. It includes the following litt. 2004). A few nesting pairs (1–2) also capable of supporting sixteen breeding features essential to the species: areas of occupy this unit each year (Stenzel in birds under proper management. The sandy beach above and below the high litt. 2004). This unit is capable of
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supporting 20 breeding birds under headland northwest of Villa Creek, and subunit is capable of supporting 110 proper management. It includes the inland (north) for 0.25 mi (0.4 km) along breeding birds under proper following features essential to the Villa Creek. This subunit is an management. It includes the following species: wind-blown sand dunes, areas important breeding area that supports features essential to the species: wind- of sandy beach above and below the between 21 and 38 adults during the blown sand dunes, areas of sandy beach high tide line with occasional surf-cast breeding season, and up to 31 nests above and below the high tide line with wrack supporting small invertebrates (Larson 2003a). This area is also an occasional surf-cast wrack supporting (for nesting and foraging) and generally important wintering site that supports small invertebrates (for nesting and barren to sparsely vegetated terrain (for up to 30 wintering birds (George 2001). foraging) and generally barren to foraging and predator avoidance). This It includes the following features sparsely vegetated terrain (for foraging unit is situated entirely on State-owned essential to the species: Areas of sandy and predator avoidance). Human land. Human disturbance and habitat beach above and below the high tide disturbance, horses, pets, predators, and changes due to exotic vegetation are the line with occasional surf-cast wrack dune-stabilizing vegetation are the primary threats to snowy plovers in this supporting small invertebrates (for primary threats to plovers in this unit that may require special nesting and foraging) and generally subunit that may require special management. barren to sparsely vegetated terrain (for management. foraging and predator avoidance). CA 14, San Simeon Beach, 28 ac (11 ha) Threats that may require special CA 16, Pismo Beach/ Nipomo Dunes, CA 14, which is entirely within San management include human 1,269 ac (513 ha) Simeon State Beach, is located about 5 disturbance, pets, horses, and predators. mi (8 km) south of San Simeon. It This unit consists of two larger areas extends about 0.9 mi (1.5 km) north Subunit CA 15B, Atascadero Beach, 144 connected by a narrow strip of land along the coast from a point opposite ac (58 ha) below the mean high water (MHW) line. the intersection of Highway 1 and This subunit is located at Morro The narrow strip is all that remains of Moonstone Beach Drive to the Strand State Beach near the city of that part of the unit after the exclusion northwestern corner of San Simeon Morro Bay, and is managed entirely by of Guadalupe/Nipomo Dunes National State Beach. This is an important snowy the California Department of Parks and Wildlife Refuge (see Exclusions section, plover wintering area, supporting 143 Recreation. It extends about 2.1 mi (3.4 below). The unit is located south of birds as documented by the most recent km) north along the beach from Morro Grover City and Oceano and includes winter survey (Page in litt. 2004). The Creek to an unnamed rocky outcrop areas of Rancho Guadalupe County unit also supports a small number of opposite the end of Yerba Buena Street Park, managed by Santa Barbara County; nesting plovers: one nest hatched three at the north end of Morro Bay. This is and the Guadalupe Oil Field, the Oso chicks in 2002, and one nest was an important breeding area supporting Flaco Natural Area and Oceano Dunes initiated but lost to predators in 2003 up to 40 nests each year (Larson 2003b). Off-road Vehicular Recreation Area, (Orr in litt. 2004). This unit includes the CA 15B is also an important wintering managed by the California Department following features essential to the area, with up to 152 wintering birds of Parks and Recreation. The unit species: areas of sandy beach above and (Page in litt. 2004). This subunit is extends about 12 mi (19 km) north along below the high tide line with occasional capable of supporting 40 breeding birds the beach from a point about 0.4 mi (0.6 surf-cast wrack supporting small under proper management. It includes km) north of Mussel Point to a point on invertebrates (for nesting and foraging) the following features essential to the the north side of Arroyo Grande Creek and generally barren to sparsely species: Areas of sandy beach above and at the south end of Strand Way in vegetated terrain (for foraging and below the high tide line with occasional Oceano. This is an important breeding predator avoidance). Human surf-cast wrack supporting small area capable of supporting between 123 disturbance, pets, and dune stabilizing invertebrates (for nesting and foraging) and 246 breeding adults and over 300 vegetation are the primary threats to and generally barren to sparsely wintering birds (George 2001). This unit snowy plovers in this unit that may vegetated terrain (for foraging and is capable of supporting 350 breeding require special management. predator avoidance). Human birds under proper management. It disturbance, pets, and predators are the includes the following features essential CA 15. Estero Bay Beaches primary threats to plovers in this to the species: Wind-blown sand dunes, This unit includes three subunits in subunit that may require special areas of sandy beach above and below Estero Bay, California, San Luis Obispo management. the high tide line with occasional surf- County. The subunits include a pocket cast wrack supporting small Subunit CA 15C, Morro Bay Beach, 611 beach at the north end of the bay (15A), invertebrates (for nesting and foraging) ac (247 ha) and the beaches north and south of and generally barren to sparsely Morro Rock (15B and 15C), in the This subunit is located at Morro Bay vegetated terrain (for foraging and vicinity of Morro Bay, California. near Morro Rock. The majority of the predator avoidance). This unit includes beach is managed by the California approximately 769.7 ac (311.5 ha) of Subunit CA 15A, Villa Creek Beach, 17 Department of Parks and Recreation, State and local land, and 498.9 ac (201.9 ac (7 ha) while the northern tip of the sand spit ha) of private land. CA State Parks and The Villa Creek subunit is about 3.5 is owned by the city of Morro Bay. It Santa Barbara County Parks are in the mi (5.6 km) northwest of the city of extends 6.9 mi (11.1 km) north along the early stages of drafting separate HCPs Cayucos, and is managed by the beach from a rocky outcrop about 0.2 mi for lands they manage within the unit. California Department of Parks and (0.3 km) north of Hazard Canyon to the If completed by the time of the final Recreation. Villa Creek Beach is located northern tip of the sand spit. This is an critical habitat designation, these HCPs near the northern boundary of the Estero important breeding area that supports might provide a basis for further Bluffs property. It extends 0.3 mi (0.5 more than 100 breeding adults (Page in exclusions. Potential threats that may km) northwest along the beach from an litt. 2003). This is also an important require special management include unnamed headland 1.4 mi (2.3 km) wintering area that supports up to 148 direct human disturbance, OHVs, north of Point Cayucos to an unnamed wintering birds (Page in litt. 2004). This horses, pets, and predators.
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CA 17. Vandenberg Human disturbance, military activities, ha) of private land. The remaining 245.3 This unit is located on Vandenberg pets, predators, and the spread of dense- ac (99.3 ha) belongs to State or local Air Force Base in Santa Barbara County, growing vegetation are the primary agencies. Potential threats that may California. It includes two subunits. threats to plovers in this subunit that require special management include may require special management. direct human disturbance, development, Subunit CA 17A, Vandenberg North, pets, and dune-stabilizing vegetation. CA 18, Devereaux Beach, 36 ac (15 ha) 626 ac (253 ha) This unit is situated entirely on State Subunit CA 19B, Ormond Beach, 203 ac This subunit is located on and local land at Coal Oil Point, about (82 ha) Vandenberg Air Force Base about 14 mi 7 mi (11.3 km) west along the coast from This subunit is locatedon State lands (22.5 km) southwest of the city of Santa the city of Santa Barbara. It extends near the cities of Port Hueneme and Maria. It extends about 7.9 mi (12.7 km) about 3.1 mi (1.9 km) north along the Oxnard. It extends about 2.9 mi (4.7 km) north along the coast from a point along coast from the western boundary of Isla northwest along the coast from Arnold the beach 0.5 mi (0.8 km) south of Vista County Park to a point along the Road and the boundary of the Navy Base Purisima Point to an unnamed creek or beach opposite the end of Santa Barbara Ventura County, Point Mugu (NBVC) to canyon 0.6 mi (1 km) south of Lion’s Shores Drive. In recent years, up to 18 a point about 0.5 mi (0.8 km) east of the Head, an area of rocky outcrops. This is breeding plovers have occupied this south jetty of Port Hueneme. This is an an important breeding area that unit (Sandoval 2004). This unit is also important snowy plover nesting area for supports between 90 and 145 breeding an important wintering area; three this region of the coast, as the next adults (SRS 2003). This is also an hundred and sixty birds were found in concentration of nesting snowy plovers important wintering area with up to 265 the area in the most recent winter to the south (other than the adjacent wintering birds (Page in litt. 2004). This survey (Page in litt. 2004). The unit subunit CA 19C) is located on Camp subunit is capable of supporting 250 includes the following features essential Pendleton Marine Corps Base about 100 breeding birds under proper to the species: Areas of sandy beach mi (160 km). The number of birds management. It includes the following above and below the high tide line with nesting within this subunit has varied features essential to the species: Wind- occasional surf-cast wrack supporting from about 20 to 34 per year (Stenzel in blown sand dunes, areas of sandy beach small invertebrates (for nesting and litt. 2004). CA 19B is also an important above and below the high tide line with foraging) and generally barren to wintering area for the plover, with up to occasional surf-cast wrack supporting sparsely vegetated terrain (for foraging 123 birds each winter (Page in litt. small invertebrates (for nesting and and predator avoidance). Disturbance by 2004). This subunit is capable of foraging) and generally barren to humans and pets is the primary threat supporting 50 breeding birds under sparsely vegetated terrain (for foraging to snowy plovers in this unit that may proper management. It includes the and predator avoidance). The subunit is require special management. following features essential to the entirely owned by the U.S. Air Force. species: Wind-blown sand dunes, areas Disturbance of nesting by humans and CA 19. Oxnard Lowlands of sandy beach above and below the pets, military activities, predators, and This unit includes four subunits near high tide line with occasional surf-cast the spread of dense vegetation are the the city of Oxnard in Ventura County, wrack supporting small invertebrates primary threats to plovers in this California. This is an important snowy (for nesting and foraging) and generally subunit that may require special plover breeding location for this region barren to sparsely vegetated terrain (for management. of the coast, as the next concentration of foraging and predator avoidance). Subunit CA 17B, Vandenberg South, nesting snowy plovers to the south is Although this subunit is contiguous 304 ac (123 ha) located on Camp Pendleton Marine with CA 19C to the southeast, we have Corps Base about 100 mi (160 km) away. divided the area into two subunits This subunit is located on because the beaches within CA 19C are Subunit CA 19A, Mandalay Beach to Vandenberg Air Force Base about 9 mi managed by the NBVC. Disturbance Santa Clara River, 350 ac (142 ha) (14.5 km) west of the city of Lompoc, from humans and pets is the primary and is entirely on U.S. Air Force land. This subunit is located near the city threat that may require special It extends about 4.6 mi (7.4 km) north of Oxnard. It extends about 6.1 mi (9.8 management for snowy plovers in this along the coast from an unnamed rocky km) north along the coast from the north subunit. outcrop 0.2 mi (0.3 km) north of Can˜ ada jetty of Channel Islands Harbor to a la Honda Creek to the first rock point about 0.5 mi (0.8 km) north of the Subunit CA 19C, Mugu Lagoon North, outcropping along the beach north of Santa Clara River mouth. This is an 321 ac (130 ha) the Santa Ynez River (0.8 mi (0.3 km) important snowy plover nesting area, This subunit begins immediately north of the river). This is an important with 9 to 70 birds nesting each year and adjacent to subunit CA 19B, at the breeding area that supports between 10 is also an important wintering area for northern coastal boundary of Navy Base and 97 breeding adults (SRS 2003). This the plover, with up to 33 birds each Ventura County, Pt Mugu (NBVC), and is also an important wintering area with winter (Page in litt. 2004). This subunit extends about 3.3 mi (5.3 km) southeast. up to 233 wintering birds (Page in litt. is capable of supporting 64 breeding Surveys have generally provided 2004). This subunit is capable of birds under proper management. It information for the entire ‘‘Mugu supporting 150 breeding birds under includes the following features essential Lagoon Beach’’ area, so plover proper management. It includes the to the species: Wind-blown sand dunes, population information provided here following features essential to the areas of sandy beach above and below for CA 19C applies to CA 19D as well. species: Wind-blown sand dunes, areas the high tide line with occasional surf- The number of birds nesting in the area of sandy beach above and below the cast wrack supporting small has varied from about 40 to 80 per year high tide line with occasional surf-cast invertebrates (for nesting and foraging) (Stenzel in litt. 2004). CA 19C and 19D wrack supporting small invertebrates and generally barren to sparsely are also important wintering areas for (for nesting and foraging) and generally vegetated terrain (for foraging and the plover, with up to 62 birds each barren to sparsely vegetated terrain (for predator avoidance). This subunit winter (Page in litt. 2004). CA 19C and foraging and predator avoidance). includes approximately 104.5 ac (42.3 19D are capable of supporting 110
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breeding birds under proper Subunit CA 21A, Santa Monica Beach, the California Department of Parks and management. They include the 25 ac (10 ha) Recreation, and 11 acres (4.5 ha) are following features essential to the This subunit is on the west coast of privately owned. The primary threats species: Areas of sandy beach above and Los Angeles County, immediately west that may require special management in below the high tide line with occasional of the City of Santa Monica. It stretches this subunit are disturbance from human recreational use, as well as surf-cast wrack supporting small roughly 0.9 miles (1.4 km) from beach raking, which removes the wrack invertebrates (for nesting and foraging) Montana Avenue to the mouth of Santa line and reduces food resources. and generally barren to sparsely Monica Canyon. This location includes vegetated terrain (for foraging and the following essential habitat features: Subunit CA 21D, Hermosa State Beach, predator avoidance). CA 19C A wide sandy beach with occasional 10 ac (4 ha) encompasses approximately 321 ac (130 surf-cast wrack supporting small ha), all of which are owned by the U.S. This subunit is located immediately invertebrates. It supported a wintering west of the City of Hermosa Beach. This Air Force. CA 29C is located entirely flock of 32 plovers in 2004 (Page in litt. within the boundaries of the NBVC. subunit stretches roughly 0.25 miles (0.4 2004), and annually supports a km) from 2nd Street to 6th Street. This Important threats that may require significant wintering flock of plovers in location includes a wide sandy beach special management include direct a location with high quality breeding with occasional surf-cast wrack human disturbance, military activities, habitat. The subunit consists of 25 ac supporting small invertebrates. This and predators. (10 ha), of which 6 ac (2.4 ha) are owned location contained a wintering flock of Subunit CA 19D, Mugu Lagoon South, by the CA State Parks, and 19 acres (7.7 33 plovers in 2004, and 43 in 2003 87 ac (35 ha) ha) are private. The primary threats that (Clark in litt. 2004; Page in litt. 2004). may require special management in this In conjunction with subunits 21B and This subunit includes the southern subunit are disturbance from human 21C it annually supports a large and spit of land marking the coastal recreational use, as well as beach raking, significant wintering flock of plovers. boundary of Mugu Lagoon, and extends which removes the wrack line and This subunit consists of 10 acres (4 ha), southeast along the coast for about 1.7 reduces food resources. all of which are owned by the California mi (2.7 km). It is almost entirely on Subunit CA 21B, Dockweiler North, 43 Department of Parks and Recreation. Naval Base Ventura County, Pt Mugu ac (17 ha) The primary threats that may require (NBVC) property, except for 18.3 ac (7.4 special management in this subunit are ha) at its southern end, which extends This subunit is located immediately disturbance from human recreational into Pt Mugu State Park, owned by the west of the Los Angeles International use, as well as beach raking, which California Department of Parks and Airport, south of Ballona Creek and removes the wrack line and reduces Recreation. Because surveys have west of the El Segundo Dunes. It food resources. commonly treated CA 19C and 19D as stretches roughly 0.5 miles (0.8 km) CA 22, Bolsa Chica Area a single unit, plover population centered at Sandpiper Street. Essential information for both subunits is habitat features (PCEs) in the subunit This unit includes two subunits in the provided in the narrative for CA 19C include a wide sandy beach with vicinity of the Bolsa Chica wetlands in above. occasional surf-cast wrack supporting Orange County, California. The first of small invertebrates. This subunit, in these subunits includes essential habitat CA 20, Zuma Beach, 68 ac (28 ha) conjuction with subunits 21C and 21D, in the wetlands themselves, while the annually supports a significant second comprises a small area of beach This unit is located about 8 mi (3.2 wintering flock of plovers in a location immediately adjacent. km) west of the city of Malibu. It with high quality breeding habitat (Page extends about 2.8 mi (4.5 km) north in litt. 2004). It is entirely owned by the Subunit CA 22A, Bolsa Chica Reserve, along the coast from the north side of California Department of Parks and 591 ac (239 ha) Point Dume to the base of Trancas Recreation. The primary threats that This subunit is located immediately Canyon. This unit is an important may require special management are west of the City of Huntington Beach wintering location for the plover, with disturbance from human recreational and east of the Pacific Coast Highway. 130 birds surveyed in January, 2004 use, as well as beach raking, which It contains the following essential (Page in litt. 2004). It includes the removes the wrack line and reduces habitat features: Tidally influenced following essential features: areas of food resources. estuarine mud flats supporting small sandy beach above and below the high invertebrates, and seasonally dry ponds tide line with occasional surf-cast wrack Subunit CA 21C, Dockweiler South, 24 that provide nesting and foraging habitat supporting small invertebrates (for ac (10 ha) for snowy plovers. This location foraging) and generally barren to This subunit is located immediately supported 31 breeding adult plovers in sparsely vegetated terrain (for foraging west of the City of El Segundo and the 2003, and 38 in 2002 (Page in litt. 2003). and predator avoidance). This unit Hyperion Wastewater Treatment Plant. This subunit annually supports one of encompasses approximately 60 ac (24.3 It stretches roughly 0.7 miles (1.1 km) the largest breeding populations of ha) of CA State Parks lands, and 8 ac centered at Grand Avenue. This location snowy plovers in the region, and (3.2 ha) of privately owned land. Direct includes the following essential habitat contributes significantly to the human disturbance, development, features: A wide sandy beach with conservation goal for the region by horses, and pets are the primary threats occasional surf-cast wrack supporting providing habitat capable of supporting to snowy plovers in this unit that may small invertebrates. In conjuction with 50 breeding birds under proper require special management. subunits 21B and 21D it annually management. This subunit consists of CA 21, Santa Monica Bay supports a significant wintering flock of 591 acres (239.2 ha), all of which are plovers in a location with high quality privately owned. The primary threat This unit includes four subunits in breeding habitat (Page in litt. 2004). This that may require special management in Santa Monica Bay, Los Angeles County, subunit consists of 24 acres (9.7 ha), of this subunit is egg and chick predation. California. which 13 acres (5.3 ha) are owned by This site, an abandoned oil field, is
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planned to undergo significant 14 plovers in January, 2004, with 60 wrack supporting small invertebrates, as reconstruction and restoration, which recorded in January, 2003 (Clark in litt. well as tidally influenced estuarine mud should greatly increase the available 2004, Page in litt. 2004). This unit flats with tide-cast organic debris. This breeding habitat for snowy plovers annually supports a large and location contained a wintering flock of significant wintering flock of plovers Subunit CA 22B, Huntington State 21 plovers in 2004, and 39 in 2003 (Page in litt. 2004) and contributes Beach, 4 ac (2 ha) (Clark in litt. 2004, Page in litt. 2004). significantly to the conservation goal for This unit annually supports a large and This subunit is located immediately the region by providing habitat capable significant wintering flock of plovers, west of the City of Huntington Beach of supporting 15 breeding birds under and contributes significantly to the and south of CA 22A. It stretches proper management. The unit consists conservation goal for the region by roughly 0.26 miles (0.4 km) from of 58 acres (23.5 ha), of which 46 ac providing habitat capable of supporting Seapoint Avenue north to the future (18.6 ha) are owned by the California ten breeding birds under proper lagoon mouth channel into Bolsa Chica Department of Parks and Recreation, 3 management. The unit consists of 24 Ecological Reserve. This location ac (1.2 ha) are owned by the Department acres (10 ha), all of which are owned by includes the following essential habitat of Defense, and 9 ac (3.6 ha) are the California Department of Parks and features: a wide sandy beach with privately owned. The primary threat Recreation. The primary threat that may occasional surf-cast wrack supporting that may require special management in require special management in this unit small invertebrates. The subunit this unit is disturbance from human is disturbance from human recreational contained a wintering flock of 11 recreational use. use. plovers in 2004 (Page in litt. 2004), and CA 25 (A, B and C), Batiquitos Lagoon, annually supports a significant CA 27, South San Diego Beaches wintering flock of plovers in a location 65 ac (26 ha) with high quality breeding habitat. This This unit is on the west coast of San This unit includes six subunits in subunit consists of 12 ac (4.9 ha) owned Diego County, between the cities of south San Diego County, California. by the California Department of Parks Carlsbad and Encinitas. This unit Four of these subunits are on the Pacific and Recreation and 1 ac (0.4 ha) that is includes three subunits that make up coast, extending southwards from the privately owned. The primary threats the breeding islands created for nesting mouth of San Diego Bay. The remaining that may require special management in seabirds and shorebirds during two subunits (27D and 27E) are located this subunit are disturbance from restoration of the lagoon in 1996. Also in the San Diego Bay itself while a sixth human recreational use, as well as included is a portion of South Carlsbad subunit (27E) is in San Diego Bay itself. beach raking, which removes the wrack State Beach that supports a significant Subunits CA 27A and CA 27B, North line and reduces food resources. wintering population of plovers. This unit includes the following essential Island/Coronado, 185 ac (75 ha) CA 23, Santa Ana River Mouth, 13 ac (5 habitat features: sandy beaches and ha) These two subunits are separated by tidally influenced estuarine mud flats a narrow stream outlet and will be This unit is on the west coast of with tide-cast organic debris supporting considered together here. They are Orange County, immediately west of the small invertebrates. This location located immediately west of the City of City of Huntington Beach. It includes contained a wintering flock of 82 Coronado. The two subunits stretch the following essential habitat features: plovers in 2004 (Page in litt. 2004). roughly 2.5 miles (4 km) from Zuniga a wide sandy beach with surf-cast wrack Nineteen breeding adults were recorded Point to the south end of Coronado City supporting small invertebrates, and during the 2003 window survey (Page in Beach. They include the following tidally influenced estuarine mud flats litt. 2003). This unit annually supports essential habitat features: A wide sandy that provide nesting and foraging habitat a large and significant wintering flock of beach with occasional surf-cast wrack for snowy plovers. This site contains a plovers, and contributes significantly to large breeding colony of California Least the conservation goal for the region by supporting small invertebrates, as well Terns and has also supported breeding providing habitat capable of supporting as wind-blown sand in dune systems snowy plovers. This unit is the only 70 breeding birds under proper immediately inland of the active beach beach front location in Orange County management. This unit consists of a face. This location contained a that supports adult plovers through the total of 65 acres (26 ha), of which 9 wintering flock of 37 plovers in January, breeding season (see Criterion 3 above). acres (4 ha) are owned by the California 2004 (Page in litt. 2004). Biologists also The entire unit is owned by the Department of Parks and Recreation, 21 recorded 17 breeding adults during the California Department of Parks and acres (8 ha) are owned by the California 2003 window survey (Page in litt. 2003). Recreation. The primary threat that may Department of Fish and Game, and 35 These subunits annually support a large require special management in this unit acres (14 ha) are non-public. The and significant wintering flock of is disturbance from human recreational primary threats that may require special plovers, and contribute significantly to use. management in this unit are egg and the conservation goal for the region by chick predation, as well as disturbance providing habitat capable of supporting CA 24, San Onofre Beach, 58 ac (24 ha) from human recreational use at South 20 breeding birds under proper This unit is on the west coast of San Carlsbad State Beach. management. CA 27A consists of 117 ac Diego County, at the northwest corner of (47 ha), while CA 27B is comprised of Marine Corps Base Camp Pendleton. CA 26, Los Penasquitos, 24 ac (10 ha) 68 ac (28 ha). Both subunits are entirely This unit stretches roughly 1.4 miles This unit is located in San Diego on land owned by the Department of (2.2 km) from the mouth of San Mateo County, immediately south of the City Defense. The primary threats that may Creek to the mouth of San Onofre Creek of Del Mar. It includes a portion of require special management in these and includes the following essential Torrey Pines State Beach that supports subunits are disturbance from human habitat features: a wide sandy beach a significant wintering population of recreational use and military activities, with occasional surf-cast wrack plovers. Essential habitat features as well as beach raking, which removes supporting small invertebrates. This supported by the unit include a wide the wrack line and reduces food location contained a wintering flock of sandy beach with occasional surf-cast resources.
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Subunit CA 27C, Silver Strand, 174 ac Subunit CA 27E, Sweetwater National triggered through the provisions of (70 ha) Wildlife Refuge, 128 ac (52 ha) section 7, which applies only to This subunit is located immediately activities conducted, authorized, or This subunit is located immediately west of the City of Chula Vista on the funded by a Federal agency (Federal south of the City of Coronado. It east side of San Diego Bay. It includes actions). Regulations implementing this stretches roughly 3.5 miles (5.6 km) the following essential habitat features: interagency cooperation provision of the along the Pacific coast side of the Silver Sandy beaches above and below mean Act are codified at 50 CFR 402. Strand, from the southern end of NAB high tide line and tidally influenced Individuals, organizations, States, local Coronado to the south end of the Naval estuarine mud flats that provide nesting governments, and other non-Federal Radio Receiving Facility. The essential and foraging habitat for snowy plovers. entities are affected by the designation habitat features of this subunit include This location contained a wintering of critical habitat only if their actions a wide sandy beach with occasional flock of 36 plovers in 2004 (Page in litt. occur on Federal lands, require a surf-cast wrack supporting small 2004). It annually supports a large and Federal permit, license, or other invertebrates, as well as wind-blown significant wintering flock of plovers, authorization, or involve Federal sand in dune systems immediately and contributes significantly to the funding. Section 7(a)(2) of the Act requires inland of the active beach face. In conservation goal for the region by Federal agencies, including the Service, conjunction with excluded habitat on providing habitat capable of supporting to insure that their actions are not likely NAB Coronado (see Exclusions, below) 20 breeding birds under proper management. This subunit consists of to jeopardize the continued existence of this location contained wintering flocks a listed species or result in the totaling 56 plovers in 2004 (Page in litt. 128 ac (51.8 ha), of which 77 ac (31.2 ha) are owned by the U.S. Fish and destruction or adverse modification of 2004). Fifty eight breeding adults were designated critical habitat. This recorded during the 2003 window Wildlife Service, and 51 ac (20.6 ha) are privately owned. The primary threat requirement is met through section 7 survey (Page in litt. 2003). This subunit consultation under the Act. Our annually supports a large and that may require special management in this subunit is egg and chick predation. regulations define ‘‘jeopardize the significant wintering flock of plovers continued existence of’’ as to engage in (Page in litt. 2004), and will contribute Subunit CA 27F, Tijuana River Beach, an action that reasonably would be significantly to the recovery goal for the 182 ac (74 ha) expected, directly or indirectly, to region by supporting 65 breeding birds This subunit is located immediately reduce appreciably the likelihood of under proper management. The subunit south of the City of Imperial Beach. It both the survival and recovery of a consists of 174 ac (70 ha), of which 75 stretches roughly 2.3 miles (3.7 km) listed species in the wild by reducing ac (30 ha) are owned by the U.S. from the end of Seacoast Drive to the the reproduction, numbers, or Department of Defense (Navy), 96 ac (39 U.S./Mexico border. This location distribution of that species (50 CFR ha) are owned by the California includes the following essential habitat 402.02). ‘‘Destruction or adverse Department of Parks and Recreation, features: A wide sandy beach with modification of designated critical and 3 ac (1 ha) are non-public land. The occasional surf-cast wrack supporting habitat’’ is defined as a direct or indirect alteration that appreciably diminishes primary threat that may require special small invertebrates, as well as tidally the value of the critical habitat for both management in this unit is disturbance influenced estuarine mud flats with the survival and recovery of the species from human recreational use and tide-cast organic debris supporting small invertebrates for foraging. This (50 CFR 402.02). Such alterations military training, as well as egg and include, but are not limited to, adverse chick predation. subunit contained wintering flocks totaling 93 plovers in 2004 (Page in litt. changes to the physical or biological Subunit CA 27D, Delta Beach, 85 ac (35 2004). It also supported at least 12 features, i.e., the primary constituent ha) breeding adults in 2003, as indicated by elements, that were the basis for the 2003 window survey (Page in litt. determining the habitat to be critical. This subunit is located immediately 2003). This subunit annually supports a We are currently reviewing the regulatory definition of adverse south of the City of Coronado on the large and significant wintering flock of modification in relation to the west side of San Diego Bay. It includes plovers, and contributes significantly to the following essential habitat features: conservation of the species. the conservation goal for the region by Section 7(a)(4) of the Act requires sandy beaches above and below mean providing habitat capable of supporting high tide line and tidally influenced Federal agencies to confer with us on 40 breeding birds under proper any action that is likely to jeopardize estuarine mud flats with tide-cast management. The subunit is 182.4 ac organic debris that provide nesting and the continued existence of a proposed (73.8 ha), of which 76 acres (30.8 ha) are species or result in destruction or foraging habitat for snowy plovers. This owned by the California Department of adverse modification of proposed location contained a wintering flock of Parks and Recreation, 83 acres (34 ha) critical habitat. Conference reports 32 plovers in 2004 (Page in litt. 2004). are owned by the U.S. Fish and Wildlife provide conservation recommendations It annually supports a large and Service, 22 acres (8.9 ha) are non-public, to assist Federal agencies in eliminating significant wintering flock of plovers, and 1.4 acres (0.5 ha) are owned by the conflicts that may be caused by their and contributes significantly to the Department of Defense. The primary proposed actions. The conservation conservation goal for the region by threats that may require special measures in a conference report are providing habitat capable of supporting management in this unit are disturbance advisory. 10 breeding birds under proper from human recreational use and We may issue a formal conference management. This subunit consists of predation of chicks and eggs. report, if requested by the Federal action 85.3 acres (34.5 ha), all of which are Effects of Critical Habitat Designation agency. Formal conference reports owned by the Department of Defense. include an opinion that is prepared The primary threat that may require Section 7 Consultation according to 50 CFR 402.14, as if the special management in this subunit is The regulatory effects of a critical species was listed or critical habitat egg and chick predation. habitat designation under the Act are designated. We may adopt the formal
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conference report as the biological Federal activities that may affect the identified as potentially adversely opinion when the species is listed or Pacific Coast WSP or its critical habitat modifying the critical habitat. To the critical habitat designated, if no will require consultation under section extent the activities currently take place substantial new information or changes 7. Activities on private, State, or county on designated land, those activities do in the action alter the content of the lands, or lands under local jurisdictions not adversely modify the habitat. We opinion (50 CFR 402.10(d)). requiring a permit from a Federal consider all lands included in this If a species is listed or critical habitat agency, such as Federal Highway designation to be essential to the is designated, section 7(a)(2) of the Act Administration or Federal Emergency conservation of the species. Federal requires Federal agencies to ensure that Management Act funding, or a permit agencies already consult with us on activities they authorize, fund, or carry from the Corps under section 404 of the activities in areas currently occupied by out are not likely to jeopardize the Clean Water Act, will continue to be the species, or if the species may be continued existence of such a species or subject to the section 7 consultation affected by the action, to ensure that to destroy or adversely modify its process. Federal actions not affecting their actions do not jeopardize the critical habitat. If a Federal action may listed species or critical habitat, and continued existence of the species. affect a listed species or its critical actions on non-Federal lands that are If you have questions regarding habitat, the responsible Federal agency not federally funded, authorized, or whether specific activities will (action agency) must enter into permitted, do not require section 7 constitute destruction or adverse consultation with us. Through this consultations. modification of critical habitat, contact consultation, the Federal action agency Section 4(b)(8) of the Act requires us the Field Supervisor, Sacramento Fish would ensure that the permitted actions to evaluate briefly and describe, in any and Wildlife Office (see ADDRESSES do not destroy or adversely modify proposed or final regulation that section). Requests for copies of the critical habitat. designates critical habitat, those regulations on listed wildlife and plants If we issue a biological opinion activities involving a Federal action that and inquiries about prohibitions and concluding that a project is likely to may adversely modify such habitat or permits may be addressed to the Field result in the destruction or adverse that may be affected by such Supervisor, Sacramento Fish and Wildlife Office (see ADDRESSES section) modification of critical habitat, we also designation. Activities that may destroy provide ‘‘reasonable and prudent or adversely modify critical habitat Application of Section 3(5)(A) and alternatives’’ to the project, if any are include those that alter the primary 4(a)(3) and Exclusions Under Section identifiable. Reasonable and prudent constituent elements to an extent that 4(b)(2) of the Act alternatives are defined at 50 CFR the value of critical habitat for both the survival and recovery of Pacific Coast Section 3(5)(A) of the Act defines 402.02 as alternative actions identified critical habitat as the specific areas during consultation that can be WSP is appreciably reduced. We note that such activities also may jeopardize within the geographic area occupied by implemented in a manner consistent the species on which are found those with the intended purpose of the action, the continued existence of the species. Activities that, when carried out, physical and biological features (I) that are consistent with the scope of the funded, or authorized by a Federal essential to the conservation of the Federal agency’s legal authority and agency, may adversely affect critical species and (II) which may require jurisdiction, that are economically and habitat for the Pacific Coast WSP special management considerations or technologically feasible, and that the include, but are not limited to: protection. Therefore, areas within the Service’s Regional Director believes (1) Actions and management efforts geographic area occupied by the species would avoid the likelihood of affecting Pacific Coast WSP on Federal that do not contain the features essential jeopardizing the continued existence of lands such as national seashores, parks, for the conservation of the species are listed species or resulting in the and wildlife reserves; not, by definition, critical habitat. destruction or adverse modification of (2) Dredging and dredge spoil Similarly, areas within the geographic critical habitat. Reasonable and prudent placement that permanently removes area occupied by the species that do not alternatives can vary from slight project PCEs to the extent the essential require special management also are modifications to extensive redesign or biological function of plovers are not, by definition, critical habitat. To relocation of the project. Costs affected for the foreseeable future; determine whether an area requires associated with implementing a (3) Construction and maintenance of special management, we first determine reasonable and prudent alternative are roads, walkways, marinas, access if the essential features located there similarly variable. points, bridges, culverts and other generally require special management to Regulations at 50 CFR 402.16 require structures which interfere with plover address applicable threats. If those Federal agencies to reinitiate nesting, breeding, or foraging or produce features do not require special consultation on previously reviewed increases in predation; management, or if they do in general but actions under certain circumstances, (4) Stormwater and wastewater not for the particular area in question including instances where critical discharge from communities; because of the existence of an adequate habitat is subsequently designated and (5) Flood control actions that change management plan or for some other the Federal agency has retained the PCEs to the extent that the habitat reason, then the area does not require discretionary involvement or control no longer contributes to the special management. over the action or such discretionary conservation of the species. Generally, we consider a current plan involvement or control is authorized by It is important to note that while all to provide adequate management or law. Consequently, some Federal lands proposed for designation as protection if it is complete and provides agencies may request reinitiation of critical habitat are within the historical a conservation benefit to the species and consultation or a conference with us on geographic area occupied by the species, is reasonably certain of being actions for which formal consultation and are likely to be used by the Pacific implemented that those responsible for has been completed, if those actions Coast WSP habitat whether for foraging, implementing the plan are capable of may affect designated critical habitat, or breeding, growth of juveniles, dispersal, accomplishing the objectives, and have adversely modify or destroy proposed migration or sheltering. Some of these an implementation schedule or critical habitat. lands are currently subject to activities adequate funding for implementing the
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management plan); and the plan any exclusions made in the final rule critical habitat those lands determined provides a basis for the conservation will be the result of a consideration of to be essential to the conservation of the strategies adopted and their new information received, including Pacific Coast WSP that are within the effectiveness (i.e., it identifies biological consideration of all comments received boundaries of the approved subareas of goals, has provisions for reporting and the findings of the economic and the MSCP. We have further determined progress, and is of a duration sufficient NEPA analyses. that the exclusion of these areas from to implement the plan and achieve the critical habitat would not result in the Exclusions plan’s goals and objectives). extinction of the Pacific Coast WSP. The Section 318 of the fiscal year 2004 We have considered and excluded ten rationale for this determination is National Defense Authorization Act entire units and portions of two other detailed below. (Pub. L. No. 108–136) amended the Act units from this proposal, based on the We are also excluding those portions to address the relationship of Integrated three provisions of the Act discussed of units CA 17 and CA 23 that fall Natural Resources Management Plans above. within the Salinas River National (INRMPs) to critical habitat by adding a Section 4(a)(3) Wildlife Refuge (NWR) and the new section 4(a)(3)(B). This provision Guadalupe-Nipomo Dunes NWR prohibits the Service from designating Under section 4(a)(3) of the Act respectively. The Salinas River NWR as critical habitat any lands or other (resource management plans on military has completed a Comprehensive geographical areas owned or controlled land), we are excluding one entire unit, Conservation Plan (CCP) that addresses by the Department of Defense, or consisting of 534 ac (212 ha) of beach plovers, while the Guadalupe-Nipomo designated for its use, that are subject to habitat on San Nicholas Island, in Dunes NWR has completed a plover an INRMP prepared under section 101 Ventura County, California. This area, management plan. Both plans have of the Sikes Act (16 U.S.C. 670a), if the corresponding roughly to location CA– undergone section 7 review, and Secretary of the Interior determines in 100 in our Draft Recovery Plan, is provide a conservation benefit to the writing that such plan provides a benefit owned by the U.S. Navy, and contains species. The amounts of land excluded to the species for which critical habitat habitat capable of supporting 150 are 142 ac (57.5 ha) at Salinas River is proposed for designation. breeding plovers with proper NWR, and 234 ac (94.7 ha) at Further, section 4(b)(2) of the Act management. We base the exclusion of Guadalupe-Nipomo Dunes NWR. states that critical habitat shall be this unit on a completed INRMP The three essential habitat areas designated, and revised on the basis of addressing plover management for the discussed above do not meet the the best scientific data available after area which has received a concurring definition of critical habitat under taking into consideration the economic biological opinion from us during section 3(5)(A) of the Act because impact, the impact on national security, formal consultation under section 7 of management plans already in place are and any other relevant impact of the Act. adequate, and no special management specifying any particular area as critical Section 3(5)(A) and Section 4(b)(2) will be required. We are simultaneously habitat. An area may be excluded from excluding them under section 4(b)(2) of critical habitat if it is determined, Under a combination of sections the Act because, given the existence of following an analysis, that the benefits 3(5)(A) (special management) and approved management plans, the of such exclusion outweigh the benefits 4(b)(2) (benefits comparison), we are benefits of exclusion outweigh the of specifying a particular area as critical excluding one entire unit in San Diego, benefits of inclusion. habitat, unless the failure to designate California, as well as portions of two (1) Benefits of Inclusion such area as critical habitat will result other units in Monterey and San Louis in the extinction of the species. Obispo counties, California. The San The benefits of including areas in a In our critical habitat designations we Diego unit consists of 23 ac (9.3 ha) at critical habitat designation which are may use both the provisions outlined in the mouth of the San Diego Flood covered by approved HCPs, NCCP/ sections 3(5)(A) and 4(b)(2) of the Act to Control Channel, within area CA–126 in HCPs, CCPs or species-specific NWR evaluate those specific areas that we are our Draft Recovery Plan (Service 2001). management plans are normally small. considering proposing to designate as This area falls within the bounds of an The principal benefit of any designated critical habitat, as well as for those areas approved subarea plan established critical habitat area is that federally that are formally proposed for under the San Diego Multiple Species funded or authorized activities in such designation as critical habitat. Lands we Conservation Program (MSCP), a habitat, that may affect it, require have found do not meet the definition regional HCP encompassing more than consultation under section 7 of the Act. of critical habitat under section 3(5)(A), 236,000 ha (582,000 ac) and involving Such consultation would help ensure and lands excluded pursuant to section the City and County of San Diego and the provision of adequate protection to 4(b)(2), include those covered by the numerous other local governments. The avoid adverse modification or following types of plans if they provide MSCP provides for the establishment of destruction of the critical habitat. Where assurances that the conservation approximately 69,573 ha (171,000 ac) of approved management plans are in measures they outline will be preserve areas for 85 federally listed and place, our experience indicates that this implemented and effective: (1) Legally sensitive species, including the Pacific benefit is small or non-existent. The operative HCPs that cover the species; Coast WSP. This regional HCP is also a section 7 consultation process for (2) draft HCPs that cover the species and regional subarea plan under the NCCP approved and permitted management have undergone public review and program and is being developed in plans helps assure that such plans are comment; (3) Tribal conservation plans cooperation with California Department crafted to ensure the long-term survival that cover the species; (4) State of Fish and Game. and conservation of listed and covered conservation plans that cover the On the basis of the conservation species and the protection of their species; and (5) National Wildlife benefits afforded the Pacific Coast WSP essential habitat within the plan area. Refuge System Comprehensive from the measures of the approved Where we have approved such plans, Conservation Plans. We note that subarea plans of the MSCP and the areas located within plan boundaries additional areas may also be considered provisions of section 4(b)(2) of the Act, that we ordinarily would designate as for exclusion in the final rule and that we have excluded from proposed critical habitat for a listed species will
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be protected through creation of habitat organizations, and private landowners, innovative solutions to conserve species reserves or through other conservation that together can implement while allowing for development. methods. Such approved plans include conservation actions we would be (3) The Benefits of Exclusion Outweigh habitat management measures and unable to accomplish. By excluding the Benefits of Inclusion protections for conservation lands areas covered by HCPs or NCCP/HCPs designed to protect, restore, and from critical habitat designation, we In general, we find that the benefits of enhance their value as habitat for clearly maintain our commitments, critical habitat designation for the covered species. preserve these partnerships, and, we Pacific Coast WSP on lands covered by Another possible benefit to including believe, set the stage for more effective the approved HCP that protects this these lands is that the designation of conservation actions in the future. population, or on NWR lands with critical habitat can serve to educate In addition, an approved management approved CCPs or plover management landowners and the public regarding the plan must undergo consultation plans, are small while the benefits of potential conservation value of an area. pursuant to section 7 of the Act. While excluding such lands from designation This may focus and contribute to this consultation will not include a of critical habitat are substantial. After conservation efforts by other parties by formal evaluation of the plan’s potential weighing the small benefits of including clearly delineating areas of high to adversely modify critical habitat these lands against the much greater conservation value for certain species. unless critical habitat has already been benefits derived from exclusion, However, NWR lands typically are designated within the proposed plan including encouraging the pursuit of already understood by the public to area, it will carefully analyze the effects additional conservation partnerships, have a high conservation value, while of the plan on essential habitat areas as we are excluding lands within approved the HCP or NCCP/HCP development part of its jeopardy analysis under sub-areas of the San Diego MSCP, and process for non-Federal lands typically section 7 of the Act and (for HCPs or within the Salinas River and involves extensive public outreach and NCCP/HCPs) as part of its evaluation of Guadalupe-Nipomo Dunes NWRs, from opportunity for public review, thereby the adequacy of the plan under section proposed critical habitat for the Pacific accomplishing the same public 10 of the Act. Because virtually all such Coast WSP. education function as might critical plans are developed to minimize and We find that the above-mentioned habitat designation. mitigate the impacts of take (as defined management plans adequately protect (2) Benefits of Exclusion in the Act) of covered species resulting essential Pacific Coast WSP habitat within their boundaries and provide The benefits of excluding areas from habitat loss within the plan area, a fundamental goal of these plans is to appropriate management to maintain protected by HCPs, NCCP/HCPs, or and enhance the long-term value of such other approved management plans identify and protect habitat essential to the covered species while directing habitat. The education benefits of include relieving landowners, critical habitat designation have been communities, and counties of any development to non-habitat or lower- quality habitat areas. Thus, the plan’s achieved through the public outreach additional regulatory burden that might and notice and comment procedures be imposed by critical habitat. This effectiveness in protecting essential habitat within the plan boundaries will required prior to approval of these benefit is particularly compelling plans. For these reasons, we find that because we have made the have been thoroughly addressed in the management plan itself, and consulted designation of critical habitat has little determination that once an HCP, NCCP/ benefit in areas covered by these plans, HCP, or other approved management upon. Future Federal actions that may and that such benefits are outweighed plan is negotiated and approved by us affect listed species would continue to by the benefits of maintaining proactive after public comment, activities require consultation under section 7 of partnerships with plan participants and consistent with the plan will satisfy the the Act. encouraging additional conservation requirements of the Act. Many such Further, HCPs typically provide for partnerships that will result from management plans can take years to greater conservation benefits to a exclusion of essential habitat in these develop, but are considered worth the covered species than consultations plan areas. We also find that the effort due in part to the streamlining of pursuant to section 7 of the Act because exclusion of these lands from proposed regulatory compliance that such plans HCPs assure the long-term protection critical habitat will not result in the can produce. The imposition of an and management of a covered species extinction of the Pacific Coast WSP, nor additional regulatory layer of review and its habitat, and funding for such hinder its recovery because these plans after the completion of such plans may management through the standards have already been evaluated under therefore jeopardize conservation efforts found in the 5 Point Policy for HCPs (64 section 7 of the Act to ensure that their and partnerships in many areas, and FR 35242) and the HCP No Surprises implementation will not jeopardize the could be viewed as a disincentive to the regulation (63 FR 8859). Such continued existence of the Pacific Coast development of such plans. By assurances are typically not provided by WSP. excluding areas protected by such consultations under section 7 of the Act management plans, we also afford that, in contrast to HCPs, often do not Exclusions Under Section 4(b)(2) Alone greater regulatory certainty, and commit the project proponent to long- (A) Exclusions of Military Lands encourage the involvement and term special management or protections. development of conservation Thus, a consultation typically does not We are also excluding under section partnerships with entities such as local accord the lands it covers the extensive 4(b)(2) three units on military lands governments, private conservation benefits an HCP or NCCP/HCP provides. based on letters we have received from organizations, and private landowners. The development and implementation the base commanders establishing that Another benefit of excluding HCPs or of an HCP or NCCP/HCP provides other the areas are used for military training. NCCP/HCPs is that it would encourage important conservation benefits, All of these bases are in San Diego the continued development of including the development of biological County, California. Two of the excluded partnerships with HCP or NCCP/HCP information to guide conservation units, 79 ac (32 ha) and 428 ac (173 ha) participants, including States, local efforts and assist in species in size respectively, are on Marine governments, conservation conservation, and the creation of Corps Base Camp Pendleton (MCBCP)
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(roughly corresponding to areas CA–114 consultation may have already been (1) Benefits of Inclusion and 115 in the Draft Recovery Plan) completed that assessed the effects to a By including the six San Francisco (Service 2001), while the third (219 ac, federally listed species. The Bay units in our proposed and final 88.6 ha) is on Naval Amphibious Base requirement to undertake additional critical habitat designations, we could Coronado (NABC) (CA–128 in the Draft consultations or revisit already provide those areas with critical habitat Recovery Plan). Based on the following completed consultations specifically to protection by October, 2005, rather than analysis, we find that after taking into address the effects of activities on waiting for the salt pond management account the impact on national security, designated critical habitat could delay plan to be completed in 2007. However, the benefit of excluding these units or impair the ability of the Marine Corps as discussed in the analyses for other outweighs the benefit of including them. or Navy to train marines and SEALs for excluded units above, the protections combat in support of continuous, global (1) Benefits of Inclusion provided by critical habitat designation deployment to the western Pacific and largely overlap protections already The primary effect of designating any southwest Asia (Department of the provided under section 7 of the Act. particular area as critical habitat is the Navy; 2003 letter). requirement for Federal agencies to Three of the excluded units are on the consult with us pursuant to section 7 of (3) The Benefits of Exclusion Outweigh Don Edwards San Francisco Bay the Act to ensure actions they carry out, the Benefits of Inclusion National Wildlife Refuge, which is authorize, or fund do not destroy or Based on the impact to national managed by the Service. Any significant adversely modify designated critical security and the need of the Navy and changes to salt pond operations within habitat. Absent critical habitat Marine Corps to maintain a high level those units would trigger consultation designation, Federal agencies remain of military readiness and combat under section 7, as will the completion obligated under section 7 to consult capability, we determine that the of the salt pond management plan itself. with us on actions that may affect a benefits of excluding mission-essential Two of the units are on land managed federally listed species to ensure such training areas from proposed critical by the California Department of Fish actions do not jeopardize the species’ habitat for the Pacific Coast WSP and Game (CDFG), while the final and continued existence. The Marine Corps outweigh the benefits of including them smallest unit is on land managed by a routinely consults with us for activities in such designation. We, in conducting county governmental agency called the on MCBCP that may affect federally this analysis pursuant to section 4(b)(2) Hayward Area Recreation District listed species to ensure that the of the Act, determined that the (HARD). Both of these agencies are continued existence of such species are exclusion of these lands from critical participating in development of the not jeopardized. The Navy does the habitat will not result in the extinction management plan, and neither would be same for activities on NABC. of the Pacific Coast WSP. Although directly affected by critical habitat Designation of critical habitat may these lands are not included in designation since they are not federal also provide educational benefits by designated critical habitat, the Marine agencies. Service participation in informing land managers of areas Corps and Navy will still be required to development of the management plan, essential to the conservation of the consult with us on activities that may and the consequent necessity to review Pacific Coast WSP. In this case such affect the Pacific Coast WSP, to ensure the plan under section 7 when a draft educational value would be minimal, such activities do not jeopardize the has been completed, actually afford the since the areas of essential habitat continued existence of the species. Service greater opportunity to influence correspond closely to areas identified as Based on our analysis above, we are management of the state and locally important in the Draft Recovery Plan excluding these lands from proposed owned units than would designating (CA–114, CA–115, and CA–128 Service critical habitat for the plover pursuant them as critical habitat. 2001). Additionally, NABC was to section 4(b)(2) of the Act based on the (2) Benefits of Exclusion designated as critical habitat for the potential impacts on national security. By excluding the units from critical Pacific Coast WSP in our original (B) San Francisco Bay Exclusions designation (Service 1999). habitat designation we avoid interfering We are also excluding under section with the development of the salt pond (2) Benefits of Exclusion 4(b)(2) of the Act six units bordering the management plan, which might The Marine Corps Base, Camp south San Francisco Bay and totaling otherwise establish habitat managed for Pendleton is an amphibious training 1,847 ac (747.4 ha). Plover habitat in plovers in other locations. The six base that promotes combat readiness for this region consists primarily of excluded San Francisco Bay units were military forces and is the only Marine artificial salt ponds and associated chosen based on recent high usage of Corps facility on the West Coast where levees, much of which has recently those areas by plovers, but the plovers amphibious operations can be combined come under the management of various have demonstrated a willingness to with air, sea, and ground assault Local, State and Federal agencies travel relatively large distances within training activities year-round. The Naval including ourselves and the California the Bay area to nest wherever habitat is Amphibious Base Coronado and its Department of Fish and Game. The most appropriate (Kolar in litt. 2004). adjacent beaches provide training for agencies are developing a management Since plover habitat in the area can Navy SEALs, amphibious insertion and and restoration plan for the salt ponds easily be created or removed in different other small units. It is one of only two that will take into account the areas by drying or flooding particular amphibious training bases in the United conflicting habitat needs of at least four ponds, the management planners States. threatened or endangered species currently have the flexibility to move Designation of critical habitat in (Pacific Coast WSPs, clapper rails, salt plover habitat to wherever it would be mission-essential training areas at either marsh harvest mice, and least terns), as most advantageous in light of the base would trigger a requirement for the well as millions of migrating waterfowl conservation needs of the population Marine Corps or Navy to consult on and shorebirds that use the areas yearly. and of other threatened and endangered activities that may affect designated The plan is expected to be completed in species present in the Bay area. By critical habitat and to reinitiate 2007. (Margaret Kolar, U.S. Fish and designating critical habitat according to consultation on activities for which a Wildlife Service, in litt., May 4, 2004). the current locations of essential habitat,
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we would tend to lock the current three HCPs which are currently in their and conclusions regarding the proposed management scheme into place for the planning and development stages. We designation of critical habitat. designated units. may exclude some or all of those units We will consider all comments and Additionally, the management in our final designation if the HCPs have information received during the planning process is a collaborative effort undergone public review and provide comment period on this proposed rule involving cooperation and input from sufficient assurances of conservation during preparation of a final numerous stakeholders such as implementation and effectiveness at the rulemaking. Accordingly, the final landowners, public land managers, and time of our final designation. Other decision may differ from this proposal. the general public. This allows the best units which may be excluded from the information and local knowledge to be final designation following further Public Hearings brought to the table, and may encourage management planning or consultation The Act provides for one or more a sense of commitment to the plover’s include CA 24 and CA 25 (Vandenberg public hearings on this proposal, if continuing well-being. Due to time North and South) in Santa Barbara requested. Requests for public hearings constraints, we are unable to match this County, California, which are owned by must be made in writing at least 15 days level of public participation in the the U.S. Air Force. Vandenberg Air prior to the close of the public comment critical habitat designation process. Force Base has been managing plovers period. Such requests must be made in Finally, the enhancement and according to annual management plans, writing and be addressed to the Field management of plover habitat will but presently does not have a long-term Supervisor (see ADDRESSES section). We benefit greatly from coordination plover management plan or INRMP that will schedule public hearings on this between the various owners and has undergone formal section 7 proposal, if any are requested, and managers in the area. The ongoing consultation with us. announce the dates, times, and places of planning process can provide for that Economic Analysis those hearings in the Federal Register coordination, whereas the critical and local newspapers at least 15 days habitat designation process cannot. Section 4(b)(2) of the Act requires us prior to the first hearing. to designate critical habitat on the basis (3) The Benefits of Exclusion Outweigh of the best scientific and commercial Clarity of the Rule the Benefits of Inclusion data available and to consider the Executive Order 12866 requires each We find that the plover will obtain economic impact, impact on national agency to write regulations and notices greater benefits if we avoid designating security, and other relevant impacts of that are easy to understand. We invite habitat in the San Francisco Bay and designating a particular area as critical your comments on how to make this instead allow participating agencies to habitat. We may exclude areas from proposed rule easier to understand, complete their salt pond management critical habitat upon a determination including answers to questions such as plan unencumbered by critical habitat that the benefits of such exclusions the following: (1) Are the requirements considerations. While the salt pond outweigh the benefits of specifying such in the proposed rule clearly stated? (2) management plan offers considerable areas as critical habitat. We cannot Does the proposed rule contain benefits in comparison to critical exclude such areas from critical habitat technical jargon that interferes with the habitat, we must also consider the when such exclusion will result in the clarity? (3) Does the format of the likelihood that the plan will be extinction of the species. proposed rule (grouping and order of completed. In this case we find the An analysis of the economic impacts the sections, use of headings, likelihood to be high because the major of proposing critical habitat for the paragraphing, and so forth) aid or participants are all resource Pacific Coast WSP habitat is being reduce its clarity? (4) Is the description management agencies, and because the prepared. We will announce the of the proposed rule in the management plan is related to the recent availability of the draft economic SUPPLEMENTARY INFORMATION section of purchase by us and CDFG of 16,500 ac analysis as soon as it is completed, at the preamble helpful in understanding (6,677 ha) of salt ponds from a salt which time we will seek public review the proposed rule? (5) What else could manufacturing company. This purchase and comment. At that time, copies of we do to make this proposed rule easier involved the close cooperation of the draft economic analysis will be to understand? numerous resource management and available for downloading from the Send a copy of any comments on how environmental organizations, and had Internet at http://sacramento.fws.gov, or we could make this proposed rule easier the strong support and active by contacting the Sacramento Fish and to understand to: Office of Regulatory participation of U.S. Senator Diane Wildlife Office directly (see ADDRESSES Affairs, Department of the Interior, Feinstein of California (Feinstein in litt. section). Room 7229, 1849 C Street, NW., 2002). Accordingly, we are excluding Peer Review Washington, DC 20240. You may e-mail six units in the south San Francisco Bay In accordance with our joint policy your comments to this address: from designation. For the same reasons [email protected]. discussed above, and also because the published in the Federal Register on south San Francisco Bay is a relatively July 1, 1994 (59 FR 34270), we will seek Required Determinations the expert opinions of at least three small portion of the overall range of the Regulatory Planning and Review population, we also find that such appropriate specialists regarding this exclusion will not be likely to result in proposed rule. The purpose of such In accordance with Executive Order the population’s extinction. review is to ensure that our critical 12866, this document is a significant habitat designation is based on rule in that it may raise novel legal and Areas Which May Be Excluded From scientifically sound data, assumptions, policy issues, but it is not anticipated to Final Critical Habitat Designation and analyses. We will send these peer have an annual effect on the economy Parts of the proposed critical habitat reviewers copies of this proposed rule of $100 million or more or adversely Unit CA 23 (Pismo Beach/Nipomo) in immediately following publication in affect the economy in a material way. San Luis Obispo County, and all the the Federal Register, and we will invite Due to the timeline for publication in proposed units in Oregon are located them to comment during the public the Federal Register, the Office of within the potential planning areas of comment period on the assumptions Management and Budget (OMB) has not
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formally reviewed this rule. We are that determination. The Service has intergovernmental mandates’’ and preparing a draft economic analysis of concluded that deferring the RFA ‘‘Federal private sector mandates.’’ this proposed action. We will use this finding until completion of the draft These terms are defined in 2 U.S.C. analysis to meet the requirement of economic analysis is necessary to meet 658(5)–(7). ‘‘Federal intergovernmental section 4(b)(2) of the Act to determine the purposes and requirements of the mandate’’ includes a regulation that the economic consequences of RFA. Deferring the RFA finding in this ‘‘would impose an enforceable duty designating the specific areas as critical manner will ensure that the Service upon State, local, or Tribal habitat. This economic analysis also makes a sufficiently informed governments’’ with two exceptions. It will be used to determine compliance determination based on adequate excludes ‘‘a condition of Federal with Executive Order 12866, Regulatory economic information and provides the assistance.’’ It also excludes ‘‘a duty Flexibility Act, Small Business necessary opportunity for public arising from participation in a voluntary Regulatory Enforcement Fairness Act, comment. Federal program,’’ unless the regulation and Executive Order 12630. ‘‘relates to a then-existing Federal Small Business Regulatory Enforcement The availability of the draft economic program under which $500,000,000 or Fairness Act (5 U.S.C. 802(2)) analysis will be announced in the more is provided annually to State, Federal Register and in local In the draft economic analysis, we local, and Tribal governments under newspapers so that it is available for will determine whether designation of entitlement authority, ‘‘if the provision public review and comments. critical habitat will cause (a) any effect would ‘‘increase the stringency of on the economy of $100 million or conditions of assistance’’ or ‘‘place caps Regulatory Flexibility Act (5 U.S.C. 601 more; (b) any increases in costs or prices et seq.) upon, or otherwise decrease, the Federal for consumers, individual industries, Government’s responsibility to provide Under the Regulatory Flexibility Act Federal, State, or local government funding’’ and the State, local, or tribal (5 U.S.C. 601 et seq., as amended by the agencies, or geographic regions; or (c) governments ‘‘lack authority’’ to adjust Small Business Regulatory Enforcement any significant adverse effects on accordingly. (At the time of enactment, Fairness Act (SBREFA) of 1996), competition, employment, investment, these entitlement programs were: whenever an agency is required to productivity, innovation, or the ability Medicaid; AFDC work programs; Child publish a notice of rulemaking for any of U.S.-based enterprises to compete Nutrition; Food Stamps; Social Services proposed or final rule, it must prepare with foreign-based enterprises. Block Grants; Vocational Rehabilitation and make available for public comment Executive Order 13211 State Grants; Foster Care, Adoption a regulatory flexibility analysis that Assistance, and Independent Living; describes the effects of the rule on small On May 18, 2001, the President issued Family Support Welfare Services; and entities (i.e., small businesses, small an Executive Order (E.O. 13211) on Child Support Enforcement.) ‘‘Federal organizations, and small government regulations that significantly affect private sector mandate’’ includes a jurisdictions). However, no regulatory energy supply, distribution, and use. regulation that ‘‘would impose an flexibility analysis is required if the Executive Order 13211 requires agencies enforceable duty upon the private head of the agency certifies the rule will to prepare Statements of Energy Effects sector, except (i) a condition of Federal not have a significant economic impact when undertaking certain actions. This assistance; or (ii) a duty arising from on a substantial number of small proposed rule to designate critical participation in a voluntary Federal entities. The SBREFA amended the habitat for the Pacific Coast WSP habitat program.’’ Regulatory Flexibility Act (RFA) to is considered a significant regulatory The designation of critical habitat require Federal agencies to provide a action under Executive Order 12866 as does not impose a legally binding duty statement of the factual basis for it may raise novel legal and policy on non-Federal government entities or certifying that the rule will not have a issues. However, this designation is not private parties. Under the Act, the only significant economic impact on a expected to significantly affect energy regulatory effect is that Federal agencies substantial number of small entities. supplies, distribution, or use because must ensure that their actions do not At this time, the Service lacks the there are no pipelines, distribution destroy or adversely modify critical available economic information facilities, power grid stations, etc. habitat under section 7. While non- necessary to provide an adequate factual within the boundaries of proposed Federal entities who receive Federal basis for the required RFA finding. critical habitat. Therefore, this action is funding, assistance, permits, or Therefore, the RFA finding is deferred not a significant energy action and no otherwise require approval or until completion of the draft economic Statement of Energy Effects is required. authorization from a Federal agency for analysis prepared pursuant to section We will, however, further evaluate this an action may be indirectly impacted by 4(b)(2) of the ESA and E.O. 12866. This issue as we conduct our economic the designation of critical habitat, the draft economic analysis will provide the analysis and, as appropriate, review and legally binding duty to avoid required factual basis for the RFA revise this assessment as warranted. destruction or adverse modification of finding. Upon completion of the draft critical habitat rests squarely on the economic analysis, the Service will Unfunded Mandates Reform Act (2 Federal agency. Furthermore, to the publish a notice of availability of the U.S.C. 1501 et seq.) extent that non-Federal entities are draft economic analysis of the proposed In accordance with the Unfunded indirectly impacted because they designation and reopen the public Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate comment period for the proposed seq.), the Service makes the following in a voluntary Federal aid program, the designation for an additional 60 days. findings: Unfunded Mandates Reform Act would The Service will include with the notice (a) This rule will not produce a not apply; nor would critical habitat of availability, as appropriate, an initial Federal mandate. In general, a Federal shift the costs of the large entitlement regulatory flexibility analysis or a mandate is a provision in legislation, programs listed above onto State certification that the rule will not have statute, or regulation that would impose governments. a significant economic impact on a an enforceable duty upon State, local, (b) Due to current public knowledge substantial number of small entities tribal governments, or the private sector of the species’ protection, the accompanied by the factual basis for and includes both ‘‘Federal prohibition against take of the species
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both within and outside of the While making this definition and recognized Federal Tribes on a designated areas, and the fact that identification does not alter where and government-to-government basis. We critical habitat provides no incremental what federally sponsored activities may have determined that there are not tribal restrictions, we do not anticipate that occur, it may assist these local lands located in areas determined this rule will significantly or uniquely governments in long-range planning essential for the conservation of the affect small governments. As such, (rather than waiting for case-by-case Pacific Coast WSP habitat. Small Government Agency Plan is not section 7 consultations to occur). required. We will, however, further References Cited evaluate this issue as we conduct our Civil Justice Reform A complete list of all references cited economic analysis and revise this In accordance with Executive Order in this rulemaking is available upon assessment if appropriate. 12988, the Office of the Solicitor has request from the Field Supervisor, determined that the rule does not Sacramento Fish and Wildlife Office Takings unduly burden the judicial system and (see ADDRESSES section). In accordance with Executive Order meets the requirements of sections 3(a) Author(s) 12630 (‘‘Government Actions and and 3(b)(2) of the Order. We have Interference with Constitutionally proposed designating critical habitat in The primary author of this package is Protected Private Property Rights’’), this accordance with the provisions of the the Sacramento Fish and Wildlife Office rule is not anticipated to have Act. This proposed rule uses standard staff (see ADDRESSES section). significant takings implications. A property descriptions and identifies the List of Subjects in 50 CFR Part 17 takings implication assessment is not primary constituent elements within the required. As discussed above, the designated areas to assist the public in Endangered and threatened species, designation of critical habitat affects understanding the habitat needs of the Exports, Imports, Reporting and record only Federal actions. Although private Pacific Coast WSP habitat. keeping requirements, Transportation. parties that receive Federal funding, Proposed Regulation Promulgation assistance, or require approval or Paperwork Reduction Act of 1995 (44 authorization from a Federal agency for U.S.C. 3501 et seq.) Accordingly, we propose to amend an action may be indirectly impacted by This rule does not contain any new part 17, subchapter B of chapter I, title the designation of critical habitat, the collections of information that require 50 of the Code of Federal Regulations, legally binding duty to avoid approval by OMB under the Paperwork as set forth below: destruction or adverse modification of Reduction Act. This rule will not PART 17—[AMENDED] critical habitat rests squarely on the impose recordkeeping or reporting Federal agency. Due to current public requirements on State or local 1. The authority citation for part 17 knowledge of the species’ protections, governments, individuals, businesses, or continues to read as follows: the prohibition against take of the organizations. An agency may not Authority: 16 U.S.C. 1361–1407; 16 U.S.C. species both within and outside of the conduct or sponsor, and a person is not 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– proposed areas we do not anticipate that required to respond to, a collection of 625, 100 Stat. 3500; unless otherwise noted. property values will be affected by the information unless it displays a 2. In § 17.95(b), revise the entry for critical habitat designation. However, currently valid OMB control number. ‘‘Charadrius alexandrinus nivosus’’ we have not yet completed the under ‘‘BIRDS’’ to read as follows: economic analysis for this proposed National Environmental Policy Act rule. Once the economic analysis is It is our position that, outside the § 17.95 Critical habitat—fish and wildlife. available, we will review and revise this Tenth Circuit, we do not need to * * * * * preliminary assessment as warranted. prepare environmental analyses as (b) Birds. defined by the NEPA in connection with Federalism * * * * * designating critical habitat under the Western Snowy Plover (Charadrius In accordance with Executive Order Act. We published a notice outlining alexandrinus nivosus)—Pacific coast 13132, the rule does not have significant our reasons for this determination in the population Federalism effects. A Federalism Federal Register on October 25, 1983 (1) Critical habitat units are depicted assessment is not required. In keeping (48 FR 49244). This assertion was on the maps below for the following with DOI and Department of Commerce upheld in the courts of the Ninth Circuit States and counties: policy, we requested information from, (Douglas County v. Babbitt, 48 F.3d Washington: Grays Harbor and Pacific and coordinated development of, this 1495 (9th Cir. Ore. 1995), cert. denied counties; proposed critical habitat designation 116 S. Ct. 698 (1996).] This final Oregon: Clatsop, Coos, Curry, with appropriate State resource agencies determination does not constitute a Douglas, Lane, Lincoln, and Tillamook, in California, Oregon and Washington. major Federal action significantly counties; The designation of critical habitat in affecting the quality of the human California: Del Norte, Humboldt, Los areas currently occupied by the Pacific environment. Angeles, Marin, Mendocino, Monterey, Coast WSP habitat imposes no Orange, San Diego, San Luis Obispo, additional restrictions to those currently Government-to-Government Santa Barbara, Santa Cruz, Sonoma, and in place and, therefore, has little Relationship With Tribes Ventura counties. incremental impact on State and local In accordance with the President’s (2) The primary constituent elements governments and their activities. The memorandum of April 29, 1994, of critical habitat for the Pacific Coast designation may have some benefit to ’’Government-to-Government Relations WSP are the habitat components that these governments in that the areas with Native American Tribal provide: essential to the conservation of the Governments’’ (59 FR 22951), Executive (i) Sparsely vegetated areas above species are more clearly defined, and Order 13175, and the Department of daily high tides (such as sandy beaches, the primary constituent elements of the Interior’s manual at 512 DM 2, we dune systems immediately inland of an habitat necessary to the survival of the readily acknowledge our responsibility active beach face, salt flats, seasonally species are specifically identified. to communicate meaningfully with exposed gravel bars, dredge spoil sites,
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artificial salt ponds and adjoining (3) Critical habitat does not include the landward bounds of the units. Other levees) that are relatively undisturbed existing features and structures, such as bounds are established descriptively by the presence of humans, pets, buildings, paved areas, boat ramps, and according to compass headings and the vehicles or human-attracted predators other developed areas not containing position of the mean low waterline (essential for reproduction, food, shelter one or more of the primary constituent (MLW). For purposes of estimating unit from predators, protection from elements. Any such structures that were sizes, we approximated MLW in disturbance, and space for growth and inside the boundaries of a critical California using the most recent GIS normal behavior). habitat unit at the time it was projection of mean high water (MHW). designated are not critical habitat. The (ii) Sparsely vegetated sandy beach, We chose MHW both because it is the land on which such structures directly mud flats, gravel bars or artificial salt only approximation of the coastline sit is also not critical habitat, so long as ponds subject to daily tidal inundation currently available in GIS format. We the structures remain in place. were unable to obtain recent GIS maps but not currently under water, that (4) Critical Habitat Map Units—Data of MHW or MLW for Oregon and support small invertebrates (essential layers defining map units were created Washington; therefore, we for food). on a base of USGS 7.5’ quadrangles, and (iii) Surf or tide-cast organic debris critical habitat units were then mapped approximated MLW for units in those such as seaweed or driftwood (essential using Universal Transverse Mercatur, States based on aerial photographs. to support small invertebrates for food, North American Datum 1927 (UTM (5) Note: Maps M1–M4 (index maps) and to provide shelter from predators NAD 27) coordinates. These coordinates follow: and weather for reproduction). establish the vertices and endpoints of BILLING CODE 4310–55–P
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(6) Unit WA–1, Gray’s Harbor County, 410246, 5220997; 410440, 5220925; 410504, 5219330; 410475, 5219112; Washington. 410529, 5220839; 410558, 5220730; 410519, 5218732; 410603, 5218317; (i) From USGS 1:24,000 quadrangle 410568, 5220582; 410613, 5220443; 410415, 5218331; 410083, 5218317; map Copalis Beach, Washington, land 410652, 5220285; 410672, 5220152; 410059, 5218816; 410004, 5219365; bounded by the following UTM 10 NAD 410692, 5219934; 410702, 5219781; returning to 409895, 5219820. 27 coordinates (E,N): 409895, 5219820; 410746, 5219637; 410781, 5219464; (ii) Note: Unit WA 1 (Map M5) 409792, 5220191; 409737, 5220607; 410815, 5219316; 410737, 5219152; 409846, 5220869; 410019, 5220958; 410668, 5219174; 410592, 5219348; follows:
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(7) Unit WA–2, Gray’s Harbor County, 5199815; 414189, 5199727; 414265, 5199151; 413809, 5199254; 413603, Washington. 5199581; 414434, 5199496; 414600, 5199268; 413412, 5199107; 413205, (i) From USGS 1:24,000 quadrangle 5199488; 414816, 5199423; 414960, 5198905; 413067, 5198813; 412875, maps West Port, and Point Brown, 5199536; 415149, 5199660; 415368, 5198772; 412670, 5198713; 412504, Washington, land bounded by the 5199839; 415604, 5199856; 415808, 5198634; 412411, 5198529; 412393, following UTM 10 NAD 27 coordinates 5199733; 416012, 5199539; 416064, 5198396; 412460, 5198236; 412387, (E,N): 411969, 5198743; 412118, 5199233; 416059, 5198892; 416059, 5198123; 412260, 5197998; 412114, 5198955; 412321, 5199143; 412474, 5198535; 416020, 5198256; 415914, 5198138; 411995, 5198227; 411816, 5199276; 412581, 5199342; 412760, 5198083; 415679, 5198078; 415512, 5198366; returning to 411969, 5198743. 5199464; 412914, 5199534; 413095, 5198134; 415356, 5198262; 415200, 5199617; 413220, 5199696; 413634, 5198457; 414976, 5198591; 414791, (ii) Note: Unit WA 2 (Map M6) 5199705; 413834, 5199702; 413941, 5198696; 414626, 5198794; 414430, follows: 5199606; 414011, 5199668; 414163, 5198897; 414260, 5199040; 414064,
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(8) Unit WA–3, Pacific County, 5178985; 415500, 5179419; 415492, 5179614; 416563, 5179469; 416574, Washington. 5179835; 415746, 5180411; 415933, 5179293; 416561, 5179199; 416543, (i) From USGS 1:24,000 quadrangle 5180734; 416091, 5181113; 416093, 5179101; 416528, 5178820; 416534, maps Grayland, and North Cove, 5181429; 416098, 5181688; 416474, 5178526; 416523, 5178330; 416545, Washington, land bounded by the 5181685; 416492, 5181483; 416521, 5178157; 416516, 5177956; 416481, following UTM 10 NAD 27 coordinates 5181242; 416550, 5180859; 416543, 5177740; 416481, 5177511; returning to (E,N): 416476, 5177381; 415946, 5180507; 416559, 5180293; 416559, 416476, 5177381. 5177482; 415875, 5177830; 415806, 5180171; 416537, 5180035; 416541, (ii) Note: Unit WA 3 (Map M7) 5178119; 415755, 5178555; 415630, 5179894; 416545, 5179798; 416570, follows:
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(9) Unit WA–4, Pacific County, 5166723; 419029, 5166925; 419464, 5165284; 419744, 5165589; 419600, Washington. 5166919; 419684, 5166777; 419815, 5165670; 419319, 5165608; 418994, (i) From USGS 1:24,000 quadrangle 5166467; 419951, 5166110; 419928, 5165420; 418728, 5165146; 418559, maps North Cove, and Oysterville, 5165908; 419966, 5165719; 420273, 5164873; 418488, 5164536; 418451, Washington, land bounded by the 5165450; 420539, 5165109; 420908, 5163797; 418470, 5162818; 418577, following UTM 10 NAD 27 coordinates 5164721; 421093, 5164278; 421040, 5161684; 418631, 5160435; 418690, (E,N): 418747, 5156518; 418673, 5164147; 420879, 5164141; 420790, 5159126; 418802, 5157775; 418863, 5156518; 418673, 5156666; 418617, 5164219; 420951, 5164266; 420964, 5156521; returning to 418747, 5156518. 5157830; 418525, 5159271; 418433, 5164444; 420797, 5164647; 420665, 5160860; 418285, 5162689; 418193, 5164635; 420317, 5164906; 420188, (ii) Note: Unit WA 4 (Map M8) 5164185; 418201, 5164730; 418262, 5164850; 420088, 5164980; 419916, follows: 5165289; 418377, 5166088; 418684, 5165052; 419874, 5165165; 419975,
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(10) Unit OR–1A, Clatsop County, 422428, 5120744; 422355, 5120731; 422706, 5120793; 422755, 5120776; Oregon. 422257, 5120711; 422164, 5120690; 422778, 5120765; 422824, 5120743; (i) From USGS 1:24,000 quadrangle 422079, 5120666; 422036, 5120653; 422852, 5120725; 422872, 5120707; maps Clatsop Spit, and Warrenton, 422013, 5120641; 421945, 5120587; 422893, 5120679; 422903, 5120662; Oregon, land bounded by the following 421885, 5120533; 421858, 5120503; 422919, 5120640; 422943, 5120598; UTM 10 NAD 27 coordinates (E,N): 421815, 5120452; 421770, 5120391; 422962, 5120567; 422982, 5120530; 423261, 5119887; 423249, 5119889; 421748, 5120349; 421723, 5120319; 422996, 5120501; 423005, 5120480; 423241, 5119898; 423229, 5119913; 421695, 5120260; 421685, 5120228; 423013, 5120460; 423018, 5120440; 423212, 5119937; 423194, 5119957; 421647, 5120151; 421616, 5120111; 423024, 5120417; 423033, 5120379; 423180, 5119974; 423169, 5119994; 421596, 5120075; 421165, 5120166; 423038, 5120365; 423038, 5120351; 423153, 5120013; 423134, 5120034; 421191, 5120183; 421251, 5120227; 423029, 5120294; 423023, 5120237; 423125, 5120048; 423120, 5120063; 421306, 5120269; 421377, 5120329; 423024, 5120218; 423027, 5120210; 423112, 5120076; 423101, 5120088; 421442, 5120393; 421534, 5120465; 423031, 5120203; 423033, 5120194; 423088, 5120105; 423073, 5120125; 421675, 5120532; 421794, 5120587; 423039, 5120187; 423048, 5120180; 423063, 5120147; 423047, 5120169; 421842, 5120607; 421883, 5120624; 423058, 5120170; 423070, 5120153; 423037, 5120178; 423023, 5120194; 421923, 5120643; 421951, 5120653; 423080, 5120139; 423087, 5120126; 423015, 5120224; 423004, 5120246; 421962, 5120659; 422000, 5120681; 423102, 5120109; 423111, 5120092; 422999, 5120292; 422995, 5120328; 422024, 5120696; 422054, 5120705; 423120, 5120076; 423128, 5120060; 422985, 5120405; 422968, 5120466; 422082, 5120712; 422124, 5120732; 423135, 5120049; 423160, 5120015; 422948, 5120514; 422926, 5120548; 422179, 5120757; 422222, 5120781; 423178, 5119990; 423195, 5119968; 422896, 5120574; 422844, 5120609; 422250, 5120795; 422269, 5120801; 423205, 5119956; 423220, 5119939; 422775, 5120649; 422684, 5120689; 422301, 5120800; 422337, 5120799; 423234, 5119922; 423246, 5119906; 422613, 5120729; 422589, 5120743; 422388, 5120809; 422449, 5120819; returning to 423261, 5119887. 422548, 5120758; 422537, 5120757; 422506, 5120825; 422555, 5120823; (ii) Note: Unit OR 1A (Map M9) 422515, 5120754; 422486, 5120751; 422619, 5120813; 422663, 5120805; follows:
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(11) Unit OR–1B, Clatsop County, 428095, 5096141; 428103, 5096225; 428564, 5095754; 428550, 5095728; Oregon. 428107, 5096353; 428111, 5096391; 428552, 5095709; 428564, 5095683; (i) From USGS 1:24,000 quadrangle 428189, 5096392; 428193, 5096303; 428605, 5095653; 428646, 5095627; map Gearhart, Oregon, land bounded by 428205, 5096107; 428213, 5096007; 428686, 5095601; 428719, 5095583; the following UTM 10 NAD 27 428220, 5095939; 428230, 5095882; 428737, 5095558; 428752, 5095528; coordinates (E,N): 428373, 5095247; 428247, 5095802; 428255, 5095763; 428757, 5095499; 428743, 5095496; 428372, 5095242; 428347, 5095244; 428269, 5095732; 428279, 5095706; 428723, 5095486; 428705, 5095458; 428265, 5095257; 428188, 5095276; 428302, 5095679; 428340, 5095645; 428685, 5095449; 428660, 5095435; 428150, 5095296; 428127, 5095323; 428373, 5095623; 428394, 5095611; 428632, 5095420; 428595, 5095400; 428107, 5095351; 428098, 5095397; 428411, 5095612; 428422, 5095619; 428552, 5095366; 428503, 5095335; 428098, 5095450; 428061, 5095508; 428432, 5095623; 428443, 5095634; 428465, 5095309; 428430, 5095280; 428045, 5095554; 428046, 5095596; 428462, 5095659; 428483, 5095679; returning to 428373, 5095247. 428049, 5095636; 428058, 5095694; 428498, 5095703; 428518, 5095730; 428068, 5095768; 428074, 5095824; 428538, 5095748; 428555, 5095767; (ii) Note: Unit OR 1B (Map M10) 428078, 5095923; 428087, 5095993; 428564, 5095775; 428574, 5095774; follows:
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(12) Unit OR–2, Tillamook County, 426910, 5057915; 426900, 5057761; 427266, 5057067; 427266, 5057081; Oregon. 426893, 5057610; 426881, 5057478; 427267, 5057099; 427291, 5057099; (i) From USGS 1:24,000 quadrangle 426882, 5057364; 426882, 5057264; 427300, 5057059; 427312, 5057025; map Nehalem, Oregon, land bounded by 426889, 5057130; 426892, 5056994; 427318, 5057006; 427341, 5056974; the following UTM 10 NAD 27 426900, 5056918; 426908, 5056844; 427377, 5056945; 427400, 5056929; coordinates (E,N): 426638, 5056202; 426917, 5056790; 426933, 5056698; 427425, 5056920; 427454, 5056918; 426648, 5056302; 426646, 5056338; 426943, 5056642; 426954, 5056531; 427476, 5056912; 427502, 5056888; 426661, 5056396; 426661, 5056458; 426996, 5056441; 427037, 5056392; 427517, 5056862; 427525, 5056834; 426663, 5056510; 426687, 5056614; 427080, 5056366; 427119, 5056356; 427522, 5056811; 427506, 5056796; 426732, 5056817; 426740, 5056973; 427129, 5056363; 427150, 5056378; 427494, 5056776; 427478, 5056754; 426742, 5057098; 426718, 5057204; 427180, 5056406; 427204, 5056433; 427434, 5056724; 427380, 5056682; 426726, 5057301; 426737, 5057468; 427245, 5056486; 427274, 5056526; 427342, 5056636; 427321, 5056611; 426745, 5057574; 426761, 5057643; 427281, 5056538; 427282, 5056592; 427317, 5056595; 427312, 5056566; 426803, 5057778; 426792, 5057915; 427282, 5056667; 427281, 5056692; 427296, 5056535; 427273, 5056498; 426782, 5058021; 426792, 5058093; 427285, 5056696; 427300, 5056700; 427249, 5056469; 427196, 5056414; 426808, 5058259; 426824, 5058421; 427323, 5056712; 427356, 5056727; 427165, 5056384; 427146, 5056363; 426811, 5058532; 426811, 5058627; 427391, 5056746; 427396, 5056755; 427128, 5056348; 427098, 5056332; 426824, 5058717; 426835, 5058799; 427389, 5056768; 427389, 5056787; 427067, 5056320; 427029, 5056299; 426827, 5058865; 426844, 5059001; 427370, 5056799; 427349, 5056822; 426991, 5056279; 426969, 5056271; 426860, 5059088; 426852, 5059200; 427345, 5056826; 427348, 5056832; 426936, 5056261; 426896, 5056252; 426844, 5059277; 426841, 5059362; 427340, 5056841; 427333, 5056841; 426872, 5056246; 426843, 5056238; 426845, 5059456; 426836, 5059519; 427321, 5056849; 427314, 5056859; 426812, 5056231; 426790, 5056232; 426831, 5059570; 426968, 5059568; 427303, 5056871; 427285, 5056887; 426767, 5056231; 426715, 5056220; 426964, 5059469; 426963, 5059215; 427267, 5056906; 427249, 5056929; returning to 426638, 5056202. 426955, 5058919; 426943, 5058617; 427249, 5056947; 427248, 5056964; (ii) Note: Unit OR 2 (Map M11) 426927, 5058311; 426922, 5058110; 427256, 5056980; 427262, 5057004; follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75655
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(13) Unit OR–3, Tillamook County, 426227, 5045780; 426208, 5045772; 426052, 5044257; 426020, 5044062; Oregon. 426184, 5045778; 426149, 5045794; 425972, 5043800; 425889, 5043253; (i) From USGS 1:24,000 quadrangle 426122, 5045784; 426098, 5045756; 425718, 5043279; 425706, 5043277, map Garibaldi, Oregon, land bounded 426081, 5045721; 426091, 5045643; proceed generally N following the mean by the following UTM 10 NAD 27 426120, 5045495; 426128, 5045441; low water mark (defined at the coordinates (E,N): 425807, 5046046; 426159, 5045231; 426167, 5045131; beginning of the section) and returning 425855, 5046042; 425953, 5046029; 426167, 5045049; 426151, 5045006; to 425807, 5046046. 426052, 5045994; 426095, 5045969; 426143, 5044953; 426151, 5044898; 426142, 5045939; 426175, 5045895; 426159, 5044844; 426124, 5044732; (ii) Note: Unit OR 3 (Map M12) 426208, 5045840; 426224, 5045807; 426104, 5044648; 426078, 5044433; follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75657
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(14) Unit OR–4, Tillamook County, 424786, 5030254; 424805, 5030324; 425248, 5031167; 425240, 5031182; Oregon. 424803, 5030398; 424787, 5030509; 425231, 5031183; 425216, 5031183; (i) From USGS 1:24,000 quadrangle 424802, 5030591; 424847, 5030686; 425199, 5031173; 425183, 5031167; map Netarts, Oregon, land bounded by 424875, 5030754; 424883, 5030789; 425152, 5031142; 425123, 5031094; the following UTM 10 NAD 27 424897, 5030890; 424900, 5030953; 425094, 5031038; 425075, 5030997; coordinates (E,N): 424605, 5028430; 424911, 5031005; 424944, 5031092; 425054, 5030952; 425024, 5030871; 424600, 5028443; 424602, 5028544; 424987, 5031194; 425048, 5031277; 425010, 5030811; 424991, 5030685; 424623, 5028623; 424637, 5028652; 425114, 5031358; 425170, 5031395; 424955, 5030457; 424936, 5030293; 424658, 5028710; 424671, 5028790; 425200, 5031409; 425235, 5031436; 424921, 5030158; 424910, 5029996; 424666, 5028861; 424666, 5028914; 425285, 5031452; 425359, 5031463; 424901, 5029904; 424894, 5029825; 424671, 5028954; 424674, 5029049; 425428, 5031448; 425460, 5031422; 424879, 5029581; 424868, 5029462; 424671, 5029126; 424684, 5029213; 425483, 5031394; 425498, 5031352; 424856, 5029338; 424842, 5029151; 424672, 5029269; 424688, 5029339; 425521, 5031286; 425528, 5031206; 424826, 5028918; 424813, 5028760; 424684, 5029412; 424670, 5029462; 425522, 5031154; 425505, 5031129; 424809, 5028678; 424803, 5028607; 424683, 5029525; 424704, 5029599; 425471, 5031110; 425441, 5031099; 424695, 5029650; 424696, 5029689; 425410, 5031089; 425369, 5031072; 424795, 5028555; 424795, 5028510; 424733, 5029738; 424765, 5029793; 425337, 5031071; 425312, 5031066; 424788, 5028470; 424786, 5028433; 424774, 5029895; 424768, 5029978; 425238, 5031074; 425242, 5031088; returning to 424605, 5028430. 424780, 5030056; 424766, 5030101; 425250, 5031109; 425253, 5031125; (ii) Note: Unit OR 4 (Map M13) 424749, 5030150; 424749, 5030197; 425254, 5031140; 425254, 5031160; follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75659
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(15) Unit OR–5A, Tillamook County, 424926, 5014468; 424903, 5014455; 424350, 5013948; 424337, 5013991; Oregon. 424869, 5014435; 424837, 5014406; 424317, 5014049; 424300, 5014106; (i) From USGS 1:24,000 quadrangle 424815, 5014377; 424801, 5014339; 424306, 5014151; 424322, 5014207; map Sand Lake, Oregon, land bounded 424804, 5014307; 424814, 5014285; 424347, 5014221; 424387, 5014215; by the following UTM 10 NAD 27 424827, 5014254; 424834, 5014226; 424460, 5014198; 424515, 5014192; coordinates (E,N): 424809, 5014200; 424830, 5014204; returning to 424809, 424552, 5014188; 424593, 5014166; 424794, 5014205; 424774, 5014213; 5014200 424583, 5014143; 424562, 5014117; (ii) Note: Units OR 5A, OR 5B (Map 424760, 5014217; 424730, 5014223; 424540, 5014097; 424514, 5014036; M14) follows after description of OR 5B. 424518, 5013979; 424532, 5013970; 424674, 5014247; 424634, 5014265; (16) Unit OR–5B, Tillamook County, 424584, 5014284; 424515, 5014286; 424573, 5014031; 424609, 5014065; Oregon. 424658, 5014104; 424711, 5014134; 424473, 5014308; 424428, 5014331; (i) From USGS 1:24,000 quadrangle 424367, 5014334; 424330, 5014347; 424745, 5014162; 424780, 5014161; map Sand Lake, Oregon, land bounded 424796, 5014126; 424798, 5014075; 424325, 5014405; 424343, 5014448; by the following UTM 10 NAD 27 424809, 5014018; 424827, 5013987; 424410, 5014477; 424470, 5014530; coordinates (E,N): 424272, 5011745; 424870, 5013954; 424925, 5013929; 424492, 5014585; 424492, 5014644; 424142, 5011750; 424143, 5011756; 424954, 5013916; 424964, 5013883; 424476, 5014728; 424444, 5014789; 424146, 5011801; 424157, 5011855; 424964, 5013843; 424953, 5013798; 424418, 5014845; 424404, 5014890; 424169, 5011928; 424173, 5011972; 424929, 5013784; 424858, 5013782; 424404, 5014940; 424400, 5014987; 424191, 5012066; 424231, 5012163; 424781, 5013785; 424753, 5013785; 424420, 5015042; 424424, 5015092; 424248, 5012228; 424247, 5012294; 424724, 5013780; 424700, 5013777; 424434, 5015143; 424488, 5015147; 424251, 5012360; 424259, 5012478; 424591, 5015155; 424581, 5015133; 424249, 5012566; 424241, 5012663; 424675, 5013782; 424659, 5013786; 424563, 5015131; 424552, 5015101; 424227, 5012699; 424235, 5012727; 424634, 5013778; 424608, 5013758; 424548, 5015035; 424553, 5014871; 424264, 5012775; 424305, 5012859; 424583, 5013721; 424570, 5013704; 424558, 5014709; 424562, 5014617; 424347, 5012988; 424358, 5013105; 424562, 5013699; 424532, 5013643; 424562, 5014513; 424570, 5014465; 424350, 5013183; 424326, 5013208; 424501, 5013584; 424486, 5013545; 424585, 5014446; 424605, 5014398; 424281, 5013167; 424259, 5013174; 424480, 5013506; 424468, 5013413; 424650, 5014346; 424712, 5014289; 424263, 5013221; 424294, 5013281; 424461, 5013319; 424440, 5013237; 424748, 5014276; 424758, 5014294; 424331, 5013344; 424335, 5013377; 424413, 5013129; 424398, 5012999; 424761, 5014320; 424761, 5014339; 424329, 5013436; 424319, 5013477; 424391, 5012877; 424379, 5012757; 424771, 5014365; 424800, 5014420; 424323, 5013545; 424330, 5013618; 424375, 5012675; 424363, 5012598; 424817, 5014455; 424816, 5014474; 424351, 5013709; 424379, 5013760; 424359, 5012499; 424353, 5012437; 424806, 5014485; 424804, 5014498; 424405, 5013811; 424408, 5013842; 424325, 5012324; 424310, 5012226; 424797, 5014508; 424788, 5014520; 424409, 5013877; 424399, 5013926; 424304, 5012130; 424300, 5012047; 424791, 5014526; 424804, 5014531; 424395, 5013967; 424409, 5014019; 424288, 5011936; 424278, 5011836; 424816, 5014534; 424837, 5014536; 424431, 5014068; 424428, 5014106; returning to 424272, 5011745. 424863, 5014527; 424886, 5014508; 424404, 5014124; 424372, 5014112; (ii) Note: Units OR 5A, OR 5B (Map 424903, 5014493; 424927, 5014479; 424368, 5014067; 424362, 5013985; M14) follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75661
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4725 E:\FR\FM\17DEP2.SGM 17DEP2 EP17DE04.013 75662 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules
(17) Unit OR–6, Tillamook County, 423756, 5002757; 423761, 5002782; 423901, 5001992; 423929, 5002055; Oregon. 423776, 5002824; 423767, 5002856; 423954, 5002171; 423989, 5002287; (i) From USGS 1:24,000 quadrangle 423770, 5002923; 423790, 5003014; 424020, 5002363; 424065, 5002424; map Nestucca Bay, Oregon, land 423801, 5003088; 423807, 5003151; 424112, 5002471; 424163, 5002514; bounded by the following UTM 10 NAD 423806, 5003212; 423810, 5003268; 424181, 5002495; 424159, 5002466; 27 coordinates (E,N): 423971, 5000986; 423813, 5003300; 423823, 5003337; 424125, 5002435; 424098, 5002410; 423938, 5000991; 423900, 5000996; 423830, 5003377; 423830, 5003409; 424081, 5002381; 424070, 5002348; 423864, 5001005; 423835, 5001014; 423827, 5003459; 423824, 5003508; 424067, 5002314; 424069, 5002269; 423813, 5001020; 423724, 5001053; 423816, 5003545; 423814, 5003594; 424072, 5002209; 424066, 5002170; 423680, 5001098; 423646, 5001125; 423817, 5003640; 423817, 5003679; 424066, 5002145; 424060, 5002111; 423633, 5001145; 423637, 5001192; 423820, 5003735; 423833, 5003761; 424054, 5002068; 424068, 5002017; 423653, 5001238; 423659, 5001291; 423838, 5003799; 423851, 5003850; 424079, 5001943; 424102, 5001856; 423647, 5001365; 423637, 5001408; 423860, 5003898; 423864, 5003940; 424088, 5001811; 424066, 5001744; 423645, 5001442; 423680, 5001487; 423861, 5003970; 423865, 5004016; 424047, 5001684; 424031, 5001693; 423689, 5001544; 423693, 5001584; 423868, 5004057; 423988, 5004057; 424021, 5001724; 424021, 5001772; 423703, 5001654; 423699, 5001724; 423984, 5004021; 423975, 5003959; 424021, 5001815; 424003, 5001834; 423694, 5001774; 423692, 5001828; 423974, 5003878; 423969, 5003832; 423975, 5001809; 423954, 5001761; 423693, 5001881; 423703, 5001939; 423969, 5003782; 423964, 5003719; 423954, 5001708; 423981, 5001659; 423707, 5001968; 423719, 5002022; 423952, 5003664; 423937, 5003592; 423994, 5001609; 423969, 5001484; 423703, 5002045; 423687, 5002087; 423922, 5003481; 423918, 5003387; 423673, 5002137; 423674, 5002180; 423896, 5003169; 423892, 5002968; 423948, 5001416; 423948, 5001348; 423682, 5002217; 423693, 5002260; 423870, 5002776; 423864, 5002627; 423969, 5001257; 424007, 5001183; 423713, 5002317; 423733, 5002365; 423854, 5002478; 423839, 5002404; 424015, 5001114; 424007, 5001044; 423737, 5002428; 423739, 5002479; 423835, 5002285; 423829, 5002199; 423993, 5000999; returning to 423971, 423733, 5002518; 423739, 5002553; 423822, 5002105; 423809, 5002027; 5000986. 423734, 5002592; 423736, 5002619; 423810, 5001959; 423839, 5001915; (ii) Note: Units OR 6 (Map M15) 423741, 5002662; 423746, 5002709; 423869, 5001923; 423892, 5001958; follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75663
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(18) Unit OR–7, Lane County, Oregon. 4882344; 410099, 4882271; 410059, 4878839; 409682, 4878765; 409698, (i) From USGS 1:24,000 quadrangle 4881847; 410020, 4881553; 410011, 4878740; 409696, 4878733; 409699, maps Mercer Lake OE W, and Mercer 4881367; 409963, 4881129; 409938, 4878717; 409701, 4878694; 409696, Lake, Oregon, land bounded by the 4880858; 409903, 4880597; 409872, 4878656; 409687, 4878598; 409692, following UTM 10 NAD 27 coordinates 4880368; 409867, 4880331; 409863, 4878500; 409693, 4878433; 409699, (E,N): 410183, 4883959; 410218, 4880299; 409874, 4880271; 409885, 4878296; 409699, 4878270; 409695, 4883951; 410246, 4883955; 410260, 4880244; 409903, 4880212; 409921, 4878244; 409682, 4878211; 409665, 4883947; 410265, 4883920; 410273, 4880180; 409943, 4880130; 409952, 4878174; 409645, 4878126; 409639, 4883864; 410269, 4883809; 410257, 4880094; 409956, 4880050; 409954, 4878088; 409638, 4878061; 409631, 4883747; 410252, 4883652; 410244, 4880012; 409933, 4879992; 409921, 4878025; 409629, 4877989; 409615, 4883585; 410241, 4883515; 410230, 4879973; 409921, 4879955; 409929, 4877967; 409609, 4877942; 409604, 4883391; 410213, 4883323; 410205, 4879927; 409941, 4879890; 409944, 4877919; 409604, 4877895; 409613, 4883270; 410202, 4883221; 410198, 4879863; 409941, 4879833; 409935, 4877852; 409597, 4877832; 409549, 4883167; 410200, 4883104; 410207, 4879815; 409920, 4879804; 409874, 4877801; 409529, 4877773; 409450, 4883029; 410211, 4882970; 410206, 4879770; 409848, 4879743; 409839, 4882928; 410206, 4882870; 410213, 4879717; 409832, 4879667; 409841, 4877776; 409382, 4877775; 409347, 4882806; 410239, 4882738; 410252, 4879634; 409837, 4879601; 409822, 4877775; proceed generally N following 4882699; 410254, 4882655; 410259, 4879571; 409801, 4879536; 409784, the mean low water mark (defined at the 4882615; 410261, 4882590; 410259, 4879508; 409775, 4879488; 409764, beginning of the section) and returning 4882532; 410230, 4882501; 410203, 4879474; 409753, 4879444; 409768, to 410183, 4883959. 4882470; 410179, 4882445; 410156, 4879273; 409762, 4879169; 409726, (ii) Note: Unit OR 7 (Map M16) 4882418; 410135, 4882388; 410116, 4879017; 409708, 4878913; 409692, follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75665
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(19) Unit OR–8A, Lane County and 4859088; 407346, 4859075; 407358, 4858251; 407492, 4858191; 407465, Douglas County, Oregon. 4859064; 407370, 4859057; 407389, 4858155; 407454, 4858128; 407454, (i) From USGS 1:24,000 quadrangle 4859050; 407418, 4859039; 407436, 4858063; 407402, 4858010; 407335, maps Goose Pasture, and Tahkenitch 4859029; 407456, 4859016; 407479, 4857991; 407297, 4857996; 407266, Creek, Oregon, land bounded by the 4858997; 407512, 4858967; 407531, 4857991; 407232, 4857990; 407202, following UTM 10 NAD 27 coordinates 4858948; 407553, 4858931; 407578, 4857979; 407181, 4857951; 407161, (E,N): 407399, 4860677; 407512, 4858906; 407587, 4858884; 407598, 4857908; 407145, 4857855; 407131, 4860668; 407536, 4860649; 407546, 4858846; 407612, 4858818; 407618, 4857792; 407127, 4857763; 407114, 4860573; 407570, 4860530; 407597, 4858789; 407626, 4858760; 407629, 4857726; 407091, 4857601; 407077, 4860457; 407582, 4860415; 407524, 4858742; 407628, 4858717; 407620, 4857519; 407056, 4857385; 407020, 4860421; 407482, 4860442; 407400, 4857165; 407011, 4857100; 406996, 4859792; 407391, 4859761; 407387, 4858691; 407614, 4858674; 407620, 4856986; 406988, 4856901; 406903, 4859696; 407385, 4859650; 407378, 4858633; 407632, 4858609; 407642, 4859572; 407370, 4859516; 407365, 4858581; 407653, 4858557; 407671, 4856901 proceed generally N following 4859477; 407348, 4859373; 407344, 4858532; 407690, 4858502; 407696, the mean low water mark (defined at the 4859279; 407337, 4859241; 407338, 4858486; 407698, 4858467; 407701, beginning of the section) and returning 4859206; 407335, 4859179; 407333, 4858458; 407680, 4858431; 407643, to 407399, 4860677. 4859157; 407328, 4859143; 407328, 4858402; 407632, 4858399; 407606, (ii) Note: Unit OR 8A (Map M17) 4859127; 407330, 4859104; 407338, 4858357; 407565, 4858283; 407532, follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75667
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(20) Unit OR–8B, Douglas County, 406555, 4853957; 406555, 4853937; 406125, 4849763; 406106, 4849709; Oregon. 406601, 4853932; 406634, 4853937; 406076, 4849613; 406089, 4849501; (i) From USGS 1:24,000 quadrangle 406665, 4853927; 406682, 4853910; 406063, 4849426; 406033, 4849393; map Tahkenitch Creek, Oregon, land 406679, 4853865; 406665, 4853815; 405990, 4849385; 405951, 4849350; bounded by the following UTM 10 NAD 406650, 4853786; 406616, 4853747; 405932, 4849323; 405929, 4849295; 27 coordinates (E,N): 406852, 4856627; 406581, 4853723; 406540, 4853705; 405920, 4849255; 405881, 4849256; 406942, 4856626; 406889, 4856228; 406524, 4853687; 406510, 4853680; 405829, 4849252; 405798, 4849226; 406828, 4855764; 406774, 4855388; 406503, 4853648; 406324, 4852508; 405768, 4849126; 405705, 4848682; 406719, 4855094; 406721, 4855073; 406311, 4852397; 406288, 4852279; 405672, 4848514; 405609, 4848210; 406730, 4855047; 406756, 4855023; 406188, 4851651; 406139, 4851272; 405576, 4847990; 405543, 4847814; 406790, 4855013; 406827, 4855005; 406109, 4850981; 406094, 4850862; 405461, 4847397; 405367, 4846902; 406838, 4854996; 406814, 4854864; 406112, 4850810; 406136, 4850769; 406815, 4854839; 406811, 4854804; 406164, 4850739; 406205, 4850717; 405280, 4846370; 405238, 4846136; 406803, 4854769; 406786, 4854746; 406241, 4850648; 406268, 4850527; 405096, 4845425; 405005, 4845433; 406783, 4854725; 406772, 4854680; 406271, 4850439; 406254, 4850357; proceed generally N following the mean 406749, 4854626; 406750, 4854588; 406243, 4850277; 406233, 4850190; low water mark (defined at the 406730, 4854491; 406714, 4854455; 406208, 4850159; 406180, 4850148; beginning of the section) and returning 406710, 4854438; 406714, 4854398; 406191, 4850118; 406178, 4850052; to 406852, 4856627. 406700, 4854301; 406683, 4854216; 406150, 4849995; 406161, 4849964; (ii) Note: Unit OR 8B (Map M18) 406675, 4854197; 406620, 4854190; 406180, 4849942; 406149, 4849887; follows: 406594, 4854176; 406580, 4854166; 406142, 4849859; 406131, 4849818;
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(21) Unit OR–8C, Douglas County, 27 coordinates (E,N): 403950, 4840360; (defined at the beginning of the section) Oregon. 404033, 4840333; 403766, 4839137; and returning to 403950, 4840360. (i) From USGS 1:24,000 quadrangle 403684, 4838764; 403681, 4838748; (ii) Note: Unit OR–8C (Map M19) map Winchester Bay, Oregon, land 403581, 4838751; proceed generally N follows: bounded by the following UTM 10 NAD following the mean low water mark
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75671
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(22) Unit OR–8D, Coos County, 401041, 4825223; 401105, 4825207; 400650, 4823775; 400612, 4823704; Oregon. 401218, 4825201; 401279, 4825159; 400552, 4823593; 400483, 4823365; (i) From USGS 1:24,000 quadrangle 401303, 4825088; 401306, 4825027; 400446, 4823262; 400393, 4823043; map Lakeside, Oregon, land bounded by 401290, 4824934; 401229, 4824826; 400362, 4822926; 400335, 4822833; the following UTM 10 NAD 27 401173, 4824723; 401118, 4824609; 400320, 4822785; 400224, 4822422; coordinates (E,N): 401636, 4828760; 400993, 4824523; 400901, 4824418; 400189, 4822303; 400141, 4822147; 401679, 4828749; 401747, 4828726; 400880, 4824308; 400860, 4824209; 400030, 4822156; proceed generally N 401658, 4828374; 401613, 4828096; 400860, 4824112; 400857, 4824072; following the mean low water mark 401470, 4827477; 401409, 4827191; 400855, 4824044; 400852, 4824012; (defined at the beginning of the section) 401129, 4826018; 401127, 4826013; 400827, 4823985; 400798, 4823971; and returning to 401636, 4828760. 401086, 4825757; 401054, 4825630; 400769, 4823937; 400747, 4823910; 401025, 4825485; 400988, 4825352; 400729, 4823894; 400718, 4823871; (ii) Note: Units OR 8D (Map M20). 400986, 4825307; 401004, 4825278; 400697, 4823844; 400679, 4823812;
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75673
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(23) Unit OR–9, Coos County, Oregon. 4803614; 393042, 4803271; 392971, 4801921; 392137, 4801773; 392058, (i) From USGS 1:24,000 quadrangle 4803090; 392984, 4802913; 392971, 4801603; 391696, 4801111; 391595, maps Empire, and Charleston, Oregon, 4802808; 392997, 4802749; 393060, 480115 proceed generally N following land bounded by the following UTM 10 4802650; 392984, 4802525; 392909, the mean low water mark (defined at the NAD 27 coordinates (E,N): 401636, 4802426; 392851, 4802339; 392965, beginning of the section) and returning 4828760; 394245, 4805890; 393957, 4802319; 393103, 4802120; 393037, to 401636, 4828760. 4805261; 393701, 4804768; 393592, 4801882; 392991, 4801895; 392942, 4804572; 393390, 4804169; 393440, 4801829; 392915, 4801780; 392702, (ii) Note: Units OR 9 (Map M21) 4804146; 393286, 4803816; 393209, 4801829; 392390, 4801908; 392192, follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75675
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(24) Unit OR–10A, Coos County and 4763958; 382032, 4763917; 382035, 4753896; 378286, 4753834; 378276, Curry County, Oregon. 4763877; 382038, 4763851; 381965, 4753808; 378264, 4753779; 378238, (i) From USGS 1:24,000 quadrangle 4763851; 381908, 4763845; 381855, 4753706; 378235, 4753663; 378233, maps Bandon, Floras Lake, and 4763831; 381835, 4763787; 381815, 4753630; 378226, 4753586; 378215, Langlois, Oregon, land bounded by the 4763732; 381796, 4763652; 381768, 4753550; 378208, 4753517; 378208, following UTM 10 NAD 27 coordinates 4763565; 381740, 4763474; 381700, 4753479; 378193, 4753454; 378168, (E,N): 383032, 4769361; 383046, 4763351; 381665, 4763216; 381633, 4753407; 378140, 4753371; 378140, 4769436; 383042, 4769495; 383042, 4763117; 381613, 4763049; 381577, 4753331; 378149, 4753278; 378140, 4769541; 383036, 4769584; 383034, 4762926; 381547, 4762797; 381509, 4753234; 378110, 4753195; 378099, 4769625; 383032, 4769672; 383047, 4762682; 381487, 4762602; 381457, 4753128; 378063, 4753070; 378034, 4769672; 383079, 4769666; 383115, 4762530; 381435, 4762449; 381415, 4753026; 378017, 4752979; 377999, 4769654; 383145, 4769655; 383178, 4762385; 381387, 4762281; 381356, 4752941; 377988, 4752913; 377955, 4769655; 383202, 4769645; 383228, 4762183; 381331, 4762117; 381322, 4752901; 377934, 4752879; 377939, 4769633; 383248, 4769596; 383259, 4762102; 381279, 4761979; 381241, 4752854; 377935, 4752828; 377911, 4769526; 383250, 4769486; 383225, 4761866; 381217, 4761735; 381284, 4752803; 377895, 4752751; 377879, 4769479; 383179, 4769476; 383171, 4761715; 381342, 4761681; 381292, 4752704; 377867, 4752664; 377851, 4769447; 383135, 4769361; 383100, 4761524; 381229, 4761341; 381210, 4752619; 377850, 4752586; 377832, 4769213; 383079, 4769128; 383063, 4761227; 381165, 4761047; 381126, 4752547; 377811, 4752531; 377785, 4769061; 383047, 4768989; 383045, 4760920; 381057, 4760801; 381017, 4752535; 377769, 4752528; 377750, 4768946; 383030, 4768890; 383012, 4760674; 380975, 4760600; 380940, 4752506; 377728, 4752511; 377714, 4768820; 382991, 4768707; 382977, 4760529; 380922, 4760431; 380893, 4752531; 377697, 4752531; 377703, 4768620; 382965, 4768535; 382940, 4760280; 380861, 4760150; 380845, 4752515; 377700, 4752489; 377688, 4768432; 382917, 4768316; 382895, 4760050; 380821, 4759978; 380771, 4752482; 377692, 4752456; 377673, 4768227; 382870, 4768128; 382853, 4759894; 380735, 4759845; 380710, 4752408; 377646, 4752346; 377641, 4768018; 382833, 4767920; 382798, 4759775; 380685, 4759712; 380647, 4752310; 377639, 4752271; 377630, 4767778; 382768, 4767645; 382735, 4752232; 377594, 4752154; 377575, 4767504; 382713, 4767389; 382691, 4759617; 380621, 4759515; 380602, 4759445; 380558, 4759388; 380539, 4752116; 377560, 4752101; 377543, 4767273; 382666, 4767174; 382643, 4752081; 377528, 4752077; 377524, 4767072; 382628, 4766975; 382608, 4759293; 380507, 4759191; 380469, 4752063; 377532, 4752050; 377506, 4766922; 382591, 4766834; 382566, 4759070; 380450, 4758982; 380431, 4752057; 377484, 4752070; 377462, 4766684; 382544, 4766554; 382576, 4758842; 380405, 4758791; 380386, 4752061; 377445, 4752023; 377415, 4766510; 382603, 4766451; 382644, 4758721; 380361, 4758639; 380348, 4751972; 377378, 4751899; 377368, 4766419; 382674, 4766392; 382671, 4758556; 380340, 4758479; 380312, 4751881; 377287, 4751726; 377202, 4766339; 382641, 4766274; 382588, 4758387; 380278, 4758300; 380183, 4751552; 377118, 4751382; 377052, 4766209; 382541, 4766138; 382545, 4758086; 379983, 4758087; 379957, 4751245; 377001, 4751131; 376982, 4766086; 382567, 4766024; 382556, 4757987; 379865, 4757759; 379821, 4751082; 376962, 4751045; 376928, 4765947; 382545, 4765889; 382529, 4757615; 379737, 4757407; 379704, 4750980; 376866, 4750871; 376751, 4765815; 382508, 4765731; 382480, 4757340; 379624, 4757140; 379560, 4765623; 382443, 4765515; 382432, 4756968; 379496, 4756803; 379432, 4750655; 376686, 4750517; 376667, 4765445; 382402, 4765359; 382379, 4756628; 379387, 4756528; 379333, 4750450; 376658, 4750421; 376640, 4765289; 382368, 4765189; 382358, 4756378; 379270, 4756202; 379190, 4750398; 376621, 4750368; 376621, 4765107; 382333, 4765011; 382296, 4756013; 379160, 4755949; 379119, 4750340; 376624, 4750312; 376624, 4764904; 382289, 4764842; 382255, 4755837; 379072, 4755728; 379003, 4750295; 376616, 4750282; 376607, 4764757; 382230, 4764699; 382219, 4755562; 378939, 4755407; 378934, 4750262; 376599, 4750241; 376588, 4764637; 382198, 4764585; 382190, 4755397; 378894, 4755299; 378848, 4750216; 376577, 4750207; 376442, 4764527; 382180, 4764495; 382154, 4755186; 378802, 4755067; 378732, 4750212; proceed generally N following 4764458; 382142, 4764403; 382142, 4754907; 378684, 4754772; 378652, the mean low water mark (defined at the 4764352; 382142, 4764287; 382120, 4754685; 378588, 4754546; 378553, beginning of the section) and returning 4764238; 382110, 4764191; 382108, 4754457; 378497, 4754350; 378440, to 383032, 4769361. 4764152; 382081, 4764081; 382057, 4754210; 378435, 4754197; 378372, (ii) Note: Units OR 10A (Map M22) 4764030; 382051, 4764000; 382053, 4754061; 378343, 4753975; 378311, follows:
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(25) Unit OR–10B, Curry County, 374361, 4745373; 374373, 4745337; 373784, 4744944; 373750, 4744929; Oregon. 374376, 4745298; 374367, 4745268; 373681, 4744915; 373662, 4744875; (i) From USGS 1:24,000 quadrangle 374352, 4745232; 374334, 4745205; 373629, 4744819; 373593, 4744717; map Cape Blanco, Oregon, land 374226, 4745194; 374160, 4745216; 373562, 4744578; 373562, 4744578; bounded by the following UTM 10 NAD 374083, 4745202; 374027, 4745166; 373503, 4744580; proceed generally N 27 coordinates (E,N): 374260, 4745960; 373977, 4745207; 373969, 4745263; following the mean low water mark 374314, 4745907; 374279, 4745835; 373977, 4745329; 373983, 4745379; (defined at the beginning of the section) 374192, 4745721; 374165, 4745664; 373948, 4745350; 373919, 4745300; and returning to 374260, 4745960. 374150, 4745590; 374200, 4745538; 373885, 4745231; 373876, 4745161; 374259, 4745504; 374298, 4745489; 373872, 4745115; 373864, 4745070; (ii) Note: Unit OR–10B (Map M23) 374320, 4745451; 374337, 4745406; 373842, 4745035; 373819, 4744978; follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75679
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(26) Unit OR–10C, Curry County, 374905, 4740272; 374920, 4740229; 375516, 4738246; 375516, 4738194; Oregon. 374926, 4740181; 374937, 4740107; 375522, 4738128; 375528, 4738072; (i) From USGS 1:24,000 quadrangle 374936, 4740037; 374953, 4739984; 375521, 4738023; 375519, 4737985; map Cape Blanco, Oregon, land 374976, 4739927; 374998, 4739875; 375521, 4737931; 375541, 4737888; bounded by the following UTM 10 NAD 375019, 4739820; 375064, 4739692; 375537, 4737835; 375600, 4737434; 27 coordinates (E,N): 374519, 4740961; 375112, 4739562; 375160, 4739383; 375533, proceed generally N following 374556, 4740953; 374606, 4740901; 375224, 4739164; 375267, 4739024; the mean low water mark (defined at the 374661, 4740817; 374705, 4740740; 375309, 4738905; 375354, 4738763; beginning of the section) and returning 374746, 4740729; 374802, 4740690; 375395, 4738741; 375428, 4738744; to 374519, 4740961. 374832, 4740636; 374830, 4740602; 375450, 4738722; 375464, 4738651; 374832, 4740565; 374840, 4740512; 375474, 4738603; 375445, 4738554; (ii) Note: Unit OR–10C (Map M24) 374854, 4740467; 374866, 4740424; 375443, 4738453; 375481, 4738378; follows: 374871, 4740375; 374888, 4740319; 375536, 4738323; 375534, 4738275;
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(27) Unit OR–11, Curry County, 386019, 4713036; 386031, 4712992; 385762, 4712271; 385729, 4712275; Oregon. 386027, 4712938; 386014, 4712919; 385711, 4712250; 385704, 4712220; (i) From USGS 1:24,000 quadrangle 385995, 4712912; 385965, 4712889; 385699, 4712187; 385694, 4712158; map Ophir, Oregon, land bounded by 385952, 4712862; 385956, 4712836; 385692, 4712137; 385685, 4712118; the following UTM 10 NAD 27 385970, 4712805; 385992, 4712752; 385675, 4712079; 385663, 4712049; coordinates (E,N): 385905, 4713626; 386009, 4712717; 386043, 4712713; 385652, 4712017; 385649, 4711996; 385993, 4713626; 385989, 4713589; 386074, 4712704; 386054, 4712687; 385600, 4711856; 385600, 4711856; 385989, 4713556; 386000, 4713524; 386032, 4712668; 386009, 4712660; 385531, 4711877; 385513, 4711884; 386001, 4713474; 385994, 4713439; 385987, 4712658; 385956, 4712652; proceed generally N following the mean 385991, 4713412; 385982, 4713369; 385931, 4712631; 385902, 4712625; low water mark (defined at the 385976, 4713340; 385973, 4713309; 385885, 4712612; 385898, 4712569; beginning of the section) and returning 385965, 4713278; 385962, 4713256; 385904, 4712521; 385895, 4712473; to 385905, 4713626. 385966, 4713234; 385966, 4713208; 385896, 4712427; 385893, 4712375; 385957, 4713179; 385970, 4713134; 385885, 4712335; 385864, 4712295; (ii) Note: Unit OR–11 (Map M25) 385994, 4713103; 386012, 4713069; 385836, 4712274; 385804, 4712268; follows:
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VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4725 E:\FR\FM\17DEP2.SGM 17DEP2 EP17DE04.024 75684 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules
(28) Unit OR–12, Gray’s Harbor 4804146; 393286, 4803816; 393209, 4801829; 392390, 4801908; 392192, County, Washington. 4803614; 393042, 4803271; 392971, 4801921; 392137, 4801773; 392058, (i) From USGS 1:24,000 quadrangle 4803090; 392984, 4802913; 392971, 4801603; 391696, 4801111; 391595, maps Empire, and Charleston, Oregon, 4802808; 392997, 4802749; 393060, 480115; proceed generally N following land bounded by the following UTM 10 4802650; 392984, 4802525; 392909, the mean low water mark (defined at the NAD 27 coordinates (E,N): 401636, 4802426; 392851, 4802339; 392965, beginning of the section) and returning 4828760; 394245, 4805890; 393957, 4802319; 393103, 4802120; 393037, to 401636, 4828760. 4805261; 393701, 4804768; 393592, 4801882; 392991, 4801895; 392942, (ii) Note: Unit OR–12 (Map M26) 4804572; 393390, 4804169; 393440, 4801829; 392915, 4801780; 392702, follows:
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(29) Unit CA–1, Del Norte County, 399504, 4635777; 399425, 4635468; low water mark (defined at the California. 399384, 4635314; 399275, 4634785; beginning of the section) and returning (i) From USGS 1:24,000 quadrangle 398991, 4633566; 398466, 4631552; to 399441, 4635774. map Crescent City, California, land 398670, 4631260; 398324, 4631005; (ii) Note: Units CA–1 (Map M27) bounded by the following UTM 10 NAD 398324, 4631005; 398209, 4631037; follows: 27 coordinates (E,N): 399441, 4635774; proceed generally N following the mean
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(30) Unit CA–2, Humboldt County, (E,N): 406854, 4563175; 406909, the mean low water mark (defined at the California. 4563169; 406777, 4562537; 406691, beginning of the section) and returning (i) From USGS 1:24,000 quadrangle 4561673; 406135, 4560211; 405555, to 406854, 4563175. maps Rodgers Peak, and Trinadad, 4558600; 405187, 4557482; 404923, (ii) Note: Units CA–2 (Map M28) California, land bounded by the 4557330; proceed generally N following follows: following UTM 10 NAD 27 coordinates
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75689
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(31) Unit CA–3A, Humboldt County, 4538652; proceed generally N following California, land bounded by the California. the mean low water mark (defined at the following UTM 10 NAD 27 coordinates (i) From USGS 1:24,000 quadrangle beginning of the section) and returning (E,N): 405657, 4536319; 405968, maps Crannell, and Arcata North, to 406554, 4541473. 4536317; 404931, 4531851; 404539, California, land bounded by the (ii) Note: Units CA–3A, CA–3B (Map 4531879 proceed generally N following following UTM 10 NAD 27 coordinates M29) follows after description of CA– the mean low water mark (defined at the (E,N): 406554, 4541473; 406850, 3B: beginning of the section) and returning 4541471; 406870, 4540965; 406746, (32) Unit CA–3B, Humboldt County, to 405657, 4536319. 4540695; 406583, 4540426; 406413, California. 4539149; 406354, 4538891; 406371, (i) From USGS 1:24,000 quadrangle (ii) Note: Units CA–3A, CA–3B (Map 4538797; 406294, 4538652; 406149, maps Arcata North, and Tyee City, M29) follows:
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(33) Unit CA–4A, Humboldt County, 27 coordinates (E,N): 395866, 4512270; following the mean low water mark California. 395968, 4512054; 395898, 4511510; (defined at the beginning of the section) (i) From USGS 1:24,000 quadrangle 395741, 4511140; 394616, 4509320; and returning to 395866, 4512270. maps Eureka, Fields Landing, and 394166, 4508589; 392132, 4505460; (ii) Note: Units CA–4A (Map M30) Cannibal Island, California, land 392114, 4505473 proceed generally N follows: bounded by the following UTM 10 NAD
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(34) Unit CA–4B, Humboldt County, 392178, 4505423; 392157, 4505254; following the mean low water mark California. 391892, 4504800; 391616, 4504350; (defined at the beginning of the section) (i) From USGS 1:24,000 quadrangle 390808, 4502622; 390100, 4501334; and returning to 392114, 4505473. map Cannibal Island, California, land 389495, 4499927; 389538, 4499526; (ii) Note: Units CA–4B (Map M31) bounded by the following UTM 10 NAD 389226, 4499809 proceed generally N follows: 27 coordinates (E,N): 392114, 4505473;
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(35) Unit CA–4C, Humboldt County, following UTM 10 NAD 27 coordinates water mark (defined at the beginning of California. (E,N): 389046, 4499539; 389171, the section) and returning to 389046, (i) From USGS 1:24,000 quadrangle 4499501; 388506, 4498145; 385862, 4499539. maps Cannibal Island, and Ferndale, 4492184; 385723, 4492184 proceed (ii) Note: Unit CA–4C (Map M32) California, land bounded by the generally N following the mean low follows:
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(36) Unit CA–4D, Humboldt County, 399149, 4496127; 400242, 4495244; low water mark (defined at the California. 401586, 4494208; 402142, 4492667; beginning of the section) and returning (i) From USGS 1:24,000 quadrangle 402449, 4491912; 402481, 4491253; to 398394, 4496472. map Fortuna, California, land bounded 402263, 4490095; 402276, 4489021; (ii) Note: Unit CA–4D (Map M33) by the following UTM 10 NAD 27 402468, 4488324; 402916, 4487812; follows: coordinates (E,N): 398394, 4496472; proceed generally N following the mean
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(37) Unit CA–5, Mendocino County, 434702, 4375952; 434316, 4375850; 433205, 4374397; 433246, 4374176; California. 434321, 4375592; 433949, 4375521; 433373, 4374009; 433684, 4372868; (i) From USGS 1:24,000 quadrangle 433722, 4375797; 433623, 4375691; 433502, 4372573; 432647, 4372582; map Inglenook, California, land 433938, 4375209; 434062, 4374702; 432442, 4372975; proceed generally N bounded by the following UTM 10 NAD 434048, 4374174; 434190, 4373926; following the mean low water mark 27 coordinates (E,N): 434183, 4378272; 434133, 4373749; 433892, 4373805; (defined at the beginning of the section) 434210, 4378274; 434246, 4377994; 433570, 4374036; 433436, 4374324; and returning to 434183, 4378272. 434507, 4377586; 434498, 4376652; 433498, 4374626; 433493, 4374864; (ii) Note: Unit CA–5 (Map M34) 434928, 4376643; 434941, 4376311; 433391, 4374920; 433325, 4374764; follows:
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(38) Unit CA–6, Mendocino County, 4317313; 439669, 4316995; 439235, 4312237; proceed generally N following California. 4315894; 438610, 4314327; 438483, the mean low water mark (defined at the (i) From USGS 1:24,000 quadrangle 4314133; 438349, 4313805; 438391, beginning of the section) and returning maps Mallo Pass Creek, and Point Arena 4313293; 438277, 4312863; 438136, to 439747, 4317317. California, land bounded by the 4312640; 438192, 4311851; 437426, (ii) Note: Unit CA–6 (Map M35) following UTM 10 NAD 27 coordinates 4311863; 437428, 4312213; 437179, (E,N): 439747, 4317317; 439796, follows:
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(39) Unit CA–7, Marin County, 502856, 4232616; 502861, 4232631; 502600, 4231299; 502591, 4231298; California. 502864, 4232641; 502868, 4232653; 502582, 4231302; 502574, 4231307; (i) From USGS 1:24,000 quadrangle 502878, 4232696; 502898, 4232884; 502568, 4231311; 502565, 4231313; map Tomales, California, land bounded 502900, 4232983; 502901, 4233031; 502556, 4231326; 502553, 4231331; by the following UTM 10 NAD 27 502914, 4233121; 502916, 4233135; 502549, 4231332; 502526, 4231355; coordinates (E,N): 502478, 4231535; 502936, 4233201; 502942, 4233247; 502516, 4231377; 502500, 4231414; 502518, 4231639; 502600, 4231807; 502973, 4233247; 502935, 4233131; 502498, 4231417; 502493, 4231428; 502640, 4231949; 502716, 4232040; 502915, 4232977; 502884, 4232667; 502485, 4231446; 502485, 4231449; 502749, 4232104; 502757, 4232175; 502772, 4232237; 502758, 4232101; 502483, 4231455; 502480, 4231472; 502756, 4232185; 502756, 4232196; 502740, 4232042; 502672, 4231629; 502480, 4231487; 502480, 4231495; 502756, 4232216; 502759, 4232241; 502764, 4232262; 502768, 4232278; 502733, 4231351; 502660, 4231345; 502480, 4231505; returning to 502478, 502771, 4232289; 502774, 4232295; 502650, 4231336; 502642, 4231326; 4231535. 502823, 4232462; 502850, 4232578; 502633, 4231318; 502621, 4231307; (ii) Note: Unit CA–7 (Map M36) 502850, 4232578; 502852, 4232600; 502614, 4231306; 502606, 4231301; follows:
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(40) Unit CA–8, Marin County, 4217736; 503996, 4217911; 503852, 4208591; 500009, 4208106; 499997, California. 4217840; 503755, 4217538; 503404, 4207982; 499943, 4207897; 499858, (i) From USGS 1:24,000 quadrangle 4217327; 503248, 4217088; 503131, 4207658; 499821, 4207609; 499817, maps Tomales, and Drakes Bay, 4216783; 503063, 4216501; 502871, 4207502; 499707, 4207202; 499580, California, land bounded by the 4215990; 502578, 4215108; 502379, 4206933; 499511, 4206729; 499411, following UTM 10 NAD 27 coordinates 4214536; 502420, 4214406; 502698, 4206501; 499306, 4206118; 499361, (E,N): 504572, 4222726; 504572, 4214160; 502576, 4214092; 502308, 4205940; 499323, 4205958; 499335, 4222726; 504614, 4222726; 504533, 4214311; 501984, 4213425; 501745, 4205836; 499191, 4205825; 499100, 4222176; 504474, 4221753; 504423, 4212755; 501458, 4211988; 501205, 4205651; 498998, 4205696; 498933, 4221606; 504323, 4220932; 504115, 4211284; 501258, 4211192; 501175, 4205752; proceed generally N following 4220064; 504015, 4219779; 503828, 4211211; 500930, 4210500; 500900, the mean low water mark (defined at the 4219017; 503862, 4218832; 503786, 4210342; 500793, 4210193; 500720, beginning of the section) and returning 4218734; 503872, 4218442; 503881, 4209996; 500637, 4209716; 500474, to 504572, 4222726. 4218252; 503864, 4218189; 504076, 4209346; 500433, 4209173; 500364, (ii) Note: Unit CA–8 (Map M37) 4218038; 504054, 4217950; 504303, 4209049; 500289, 4208756; 500194, follows:
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(41) Unit CA–9, Marin County, 508048, 4209035; 508050, 4209034; 508095, 4208789; 508065, 4208793; California. 508068, 4209029; 508081, 4209024; 508056, 4208793; 508019, 4208789; (i) From USGS 1:24,000 quadrangle 508098, 4209021; 508101, 4209019; 507980, 4208798; 507948, 4208793; map Drakes Bay, California, land 508150, 4209009; 508228, 4208993; 507920, 4208793; 507910, 4208794; bounded by the following UTM 10 NAD 508269, 4208978; 508305, 4208939; 507867, 4208789; 507821, 4208791; 27 coordinates (E,N): 506112, 4209385; 508313, 4208932; 508315, 4208928; 507775, 4208790; 507763, 4208792; 506127, 4209403; 506148, 4209411; 508330, 4208912; 508483, 4208887; 507743, 4208793; 507736, 4208794; 506156, 4209407; 506160, 4209409; 508485, 4208887; 508500, 4208884; 507690, 4208795; 507651, 4208792; 506164, 4209409; 506175, 4209409; 508513, 4208881; 508589, 4208894; 507617, 4208793; 507611, 4208793; 506181, 4209408; 506190, 4209406; 508691, 4208894; 508700, 4208902; 507605, 4208792; 507602, 4208792; 506199, 4209398; 506212, 4209393; 508700, 4208822; 510301, 4208503; 507576, 4208790; 507547, 4208791; 506224, 4209381; 506227, 4209377; 510301, 4208469; 510275, 4208473; 507539, 4208791; 507487, 4208789; 506236, 4209364; 506250, 4209351; 510258, 4208478; 510237, 4208484; 507446, 4208791; 507393, 4208795; 506258, 4209335; 506283, 4209313; 510228, 4208485; 510202, 4208487; 507338, 4208787; 507282, 4208785; 506304, 4209295; 506356, 4209248; 510165, 4208496; 510134, 4208505; 507236, 4208792; 507235, 4208792; 506636, 4208969; 506702, 4208934; 510112, 4208510; 510072, 4208518; 507221, 4208796; 507202, 4208794; 506808, 4208934; 506886, 4208919; 510040, 4208527; 510006, 4208529; 507189, 4208799; 507180, 4208798; 506941, 4208908; 507068, 4208896; 509977, 4208540; 509963, 4208543; 507152, 4208804; 507140, 4208807; 507113, 4208881; 507123, 4208888; 509958, 4208543; 509938, 4208546; 507117, 4208812; 507104, 4208816; 507103, 4208939; 507113, 4208949; 509898, 4208553; 509862, 4208555; 507089, 4208816; 507071, 4208816; 507123, 4208947; 507125, 4208947; 509851, 4208558; 509835, 4208563; 507066, 4208818; 507040, 4208823; 507125, 4208947; 507136, 4208944; 509824, 4208566; 509802, 4208571; 507038, 4208824; 507007, 4208830; 507169, 4208919; 507257, 4208926; 509778, 4208576; 509750, 4208578; 507001, 4208833; 506975, 4208844; 507262, 4208927; 507276, 4208929; 509731, 4208579; 509680, 4208585; 506962, 4208850; 506875, 4208863; 507278, 4208928; 507398, 4208937; 509627, 4208595; 509577, 4208604; 506828, 4208855; 506821, 4208851; 507451, 4208967; 507465, 4208969; 509563, 4208609; 509555, 4208612; 506817, 4208849; 506799, 4208840; 507473, 4208976; 507475, 4208978; 509539, 4208617; 509508, 4208629; 506780, 4208829; 506759, 4208821; 507479, 4208977; 507486, 4208976; 509462, 4208642; 509448, 4208645; 506739, 4208815; 506738, 4208815; 507497, 4208980; 507504, 4208982; 509439, 4208647; 509429, 4208648; 507509, 4208988; 507513, 4208990; 509392, 4208661; 509385, 4208663; 506712, 4208815; 506711, 4208816; 507524, 4208995; 507539, 4208993; 509347, 4208677; 509308, 4208680; 506702, 4208812; 506675, 4208814; 507554, 4208995; 507557, 4208996; 509279, 4208688; 509258, 4208693; 506663, 4208811; 506659, 4208810; 507564, 4208994; 507571, 4208993; 509232, 4208697; 509196, 4208700; 506655, 4208811; 506640, 4208813; 507588, 4208983; 507672, 4208957; 509178, 4208701; 508902, 4208724; 506636, 4208814; 506624, 4208811; 507725, 4208955; 507734, 4208948; 508704, 4208751; 508696, 4208750; 506608, 4208809; 506582, 4208814; 507740, 4208941; 507742, 4208942; 508682, 4208746; 508665, 4208742; 506547, 4208824; 506518, 4208825; 507745, 4208943; 507754, 4208938; 508632, 4208740; 508601, 4208747; 506486, 4208836; 506484, 4208838; 507759, 4208931; 507809, 4208942; 508577, 4208748; 508560, 4208749; 506477, 4208840; 506457, 4208849; 507821, 4208933; 507826, 4208934; 508545, 4208753; 508525, 4208758; 506439, 4208863; 506434, 4208871; 507829, 4208935; 507833, 4208930; 508498, 4208761; 508450, 4208766; 506430, 4208877; 506423, 4208885; 507835, 4208929; 507838, 4208927; 508431, 4208764; 508396, 4208761; 506417, 4208891; 506409, 4208895; 507841, 4208925; 507848, 4208920; 508350, 4208763; 508347, 4208763; 506397, 4208910; 506367, 4208941; 507853, 4208911; 507860, 4208908; 508312, 4208768; 508275, 4208767; 506262, 4209015; 506194, 4209093; 507934, 4208927; 507969, 4208945; 508237, 4208774; 508216, 4208775; 506158, 4209192; 506115, 4209314; and 507995, 4209003; 508011, 4209013; 508199, 4208775; 508178, 4208779; returning to 506112, 4209385. 508013, 4209018; 508016, 4209019; 508166, 4208782; 508150, 4208784; (ii) Note: Unit CA–9 (Map M38) 508030, 4209025; 508047, 4209034; 508134, 4208786; 508100, 4208789; follows:
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(42) Unit CA–10, San Mateo County, 27 coordinates (E,N): 548431, 4148414; (defined at the beginning of the section) California. 548480, 4148414; 548972, 4147370; and returning to 548431, 4148414. (i) From USGS 1:24,000 quadrangle 549024, 4146767; 549079, 4146435; (ii) Note: Unit CA–10 (Map M39) map Half Moon Bay, California, land 548995, 4146435; proceed generally N follows: bounded by the following UTM 10 NAD following the mean low water mark
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(43) Unit CA–11A, Santa Cruz 564363, 4105397; 564376, 4105385; 564226, 4105459; 564212, 4105471; County, California. 564385, 4105367; 564395, 4105341; 564207, 4105475; 564181, 4105500; (i) From USGS 1:24,000 quadrangle 564401, 4105321; 564403, 4105300; 564173, 4105507; 564153, 4105525; map Ano Nuevo, California, land 564401, 4105280; 564400, 4105273; 564145, 4105535; 564137, 4105544; bounded by the following UTM 10 NAD 564397, 4105249; 564392, 4105215; 564104, 4105574; 564086, 4105594; 27 coordinates (E,N): 564224, 4105591; 564379, 4105194; 564373, 4105195; 564072, 4105611; 564068, 4105616; 564223, 4105587; 564223, 4105573; 564326, 4105243; 564324, 4105252; 564041, 4105649; 564025, 4105671; 564228, 4105565; 564239, 4105548; 564324, 4105263; 564324, 4105285; 564013, 4105687; 564006, 4105696; 564250, 4105535; 564261, 4105521; 564319, 4105310; 564313, 4105344; 564007, 4105697; 564059, 4105657; 564272, 4105509; 564284, 4105491; 564310, 4105355; 564303, 4105380; 564114, 4105629; 564210, 4105606; 564300, 4105478; 564307, 4105467; 564310, 4105464; 564320, 4105457; 564295, 4105401; 564287, 4105409; returning to 564224, 4105591. 564333, 4105437; 564335, 4105434; 564275, 4105421; 564247, 4105442; (ii) Note: Unit CA–11A (Map M40) 564348, 4105415; 564352, 4105411; 564236, 4105451; 564232, 4105454; follows:
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(44) Unit CA–11B, Santa Cruz County, 568511, 4099559; 568644, 4099426; 568780, 4098657; proceed generally N California. 568705, 4099359; 568766, 4099278; following the mean low water mark (i) From USGS 1:24,000 quadrangle 568789, 4099227; 568743, 4099219; (defined at the beginning of the section) map Davenport, California, land 568725, 4099203; 568732, 4099154; and returning to 568335, 4099623. bounded by the following UTM 10 NAD 568793, 4099079; 568797, 4099050; (ii) Note: Unit CA–11B (Map M41) 27 coordinates (E,N): 568335, 4099623; 568724, 4099017; 568788, 4098813; follows: 568357, 4099641; 568491, 4099548; 568812, 4098739; 568810, 4098648;
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(45) Unit CA–11C, Santa Cruz County, 581995, 4089920; 582016, 4089973; 582317, 4089828; proceed generally N California. 582043, 4090004; 582099, 4090029; following the mean low water mark (i) From USGS 1:24,000 quadrangle 582146, 4090031; 582186, 4090014; (defined at the beginning of the section) map Santa Cruz, California, land 582190, 4089975; 582220, 4089960; and returning to 581976, 4089882. bounded by the following UTM 10 NAD 582286, 4089956; 582339, 4089976; (ii) Note: Unit CA–11C (Map M42) 27 coordinates (E,N): 581976, 4089882; 582379, 4089965; 582325, 4089864; follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00110 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75717
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(46) Unit CA–12A, Santa Cruz and 608200, 4074106; 608183, 4074090; 609218, 4075654; 609270, 4075672; Monterey County, California. 608173, 4074081; 608156, 4074069; 609344, 4075728; 609380, 4075742; (i) From USGS 1:24,000 quadrangle 608140, 4074057; 608122, 4074050; 609451, 4075750; 609528, 4075677; Moss Landing, California, land bounded 608073, 4074061; 608061, 4074077; 609566, 4075533; 609597, 4075526; by the following UTM 10 NAD 27 proceed generally N following the mean 609642, 4075452; 609672, 4075419; coordinates (E,N): 602641, 4085403; low water mark (defined at the 609693, 4075383; 609709, 4075374; 602654, 4085404; 603028, 4084731; beginning of the section) and returning 609746, 4075376; 609782, 4075377; 603373, 4084116; 603545, 4083826; to 602641, 4085403. 609817, 4075380; 609856, 4075384; 603665, 4083604; 603870, 4083253; (ii) Note: Unit CA–12A, CA–12B (Map 609882, 4075367; 609917, 4075348; 604164, 4082731; 604315, 4082487; M43) follows after description of CA– 609958, 4075367; 609985, 4075364; 604459, 4082290; 604619, 4082019; 12B: 610013, 4075359; 610058, 4075336; 604718, 4081811; 604925, 4081464; (47) Unit CA–12B, Monterey County, 610029, 4075268; 610029, 4075128; 604841, 4081450; 605257, 4080620; California. 609963, 4075106; 609930, 4075084; 605397, 4080326; 605398, 4080326; (i) From USGS 1:24,000 quadrangle 609878, 4075050; 609842, 4075010; 605592, 4079919; 605832, 4079410; map Moss Landing, California, land 609817, 4074970; 609801, 4074919; 606019, 4079061; 606022, 4079028; bounded by the following UTM 10 NAD 609802, 4074868; 609786, 4074834; 606023, 4079009; 606050, 4078964; 27 coordinates (E,N): 608763, 4074606; 609768, 4074794; 609748, 4074758; 606080, 4078949; 606277, 4079045; 608691, 4074563; 608670, 4074673; 609727, 4074728; 609705, 4074713; 606516, 4079006; 606477, 4078887; 608584, 4074676; 608543, 4074678; 609656, 4074713; 609581, 4074728; 606488, 4078773; 606513, 4078667; 608446, 4074735; 608439, 4074818; 609517, 4074739; 609454, 4074739; 606673, 4078216; 606805, 4077593; 608641, 4074826; 608664, 4074856; 609391, 4074732; 609351, 4074722; 606937, 4077145; 607309, 4076286; 608625, 4075263; 608614, 4075389; 609319, 4074708; 609280, 4074688; 607439, 4075964; 607746, 4075289; 608635, 4075389; 608631, 4075470; 609244, 4074671; 609173, 4074665; 607845, 4075159; 607908, 4075072; 608729, 4075467; 608787, 4075475; 609007, 4074650; 608939, 4074661; 607961, 4074957; 607990, 4074859; 608845, 4075503; 608883, 4075530; 608892, 4074643; 608840, 4074635; 608020, 4074743; 608042, 4074490; 608927, 4075571; 608956, 4075595; returning to 608763, 4074606. 608121, 4074315; 608143, 4074140; 608997, 4075637; 609048, 4075659; (ii) Note: Unit CA–12A, CA–12B (Map 608228, 4074188; 608261, 4074146; 609093, 4075666; 609168, 4075653; M43) follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00112 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75719
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(48) Unit CA–12C, Monterey County, 606886, 4067445; 606756, 4066852; 602192, 4052213; 602056, 4052083; California. 606732, 4066498; 606703, 4066117; 602101, 4052015; 602050, 4051954; (i) From USGS 1:24,000 quadrangle 606672, 4065708; 606867, 4065749; 601738, 4051670; 601519, 4051529; maps Moss Landing, Marina, Monterey, 606673, 4063481; 606687, 4063333; 601475, 4051598; 601360, 4051525; and Seaside, California, land bounded 606613, 4062783; 606442, 4061895; 601378, 4051460; 601268, 4051408; by the following UTM 10 NAD 27 606471, 4061745; 606192, 4060323; 601241, 4051423; 601151, 4051378; coordinates (E,N): 608095, 4073244; 605932, 4059393; 605644, 4058444; 601176, 4051299; 601031, 4051207; 608133, 4073227; 607996, 4072880; 605471, 4057935; 605330, 4057781; 601004, 4051262; 600872, 4051184; 607902, 4072495; 607772, 4071909; 605318, 4057729; 605367, 4057641; 600651, 4051075; 600615, 4051163; 607694, 4071574; 607591, 4071148; 605122, 4056914; 604540, 4055656; 600616, 4051176; proceed generally N 607443, 4070157; 607373, 4070160; 607245, 4069481; 607176, 4068986; 604085, 4054788; 603708, 4054149; following the mean low water mark 607090, 4068741; 607001, 4068525; 603392, 4053595; 603250, 4053455; (defined at the beginning of the section) 606953, 4068276; 606953, 4068017; 602816, 4052827; 602645, 4052695; and returning to 608095, 4073244. 607024, 4067655; 607171, 4067424; 602573, 4052579; 602564, 4052513; (ii) Note: Unit CA–12C (Map M44) 607894, 4066580; 607776, 4066516; 602521, 4052435; 602234, 4052184; follows:
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(49) Unit CA–13, Monterey County, coordinates (E,N): 599299, 4019363; (defined at the beginning of the section) California. 599421, 4019200; 599320, 4018471; and returning to 599299, 4019363. (i) From USGS 1:24,000 quadrangle 599091, 4018323; 598903, 4018365; (ii) Note: Unit CA–13 (Map M45) map Point Sur, California, land bounded 598903, 4018365; proceed generally N follows: by the following UTM 10 NAD 27 following the mean low water mark
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00116 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75723
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(50) Unit CA–14, San Luis Obispo (E,N): 669618, 3940622; 669684, water mark (defined at the beginning of County, California. 3940666; 669759, 3940658; 669823, the section) and returning to 669618, (i) From USGS 1:24,000 quadrangle 3940570; 669860, 3940553; 670111, 3940622. maps Pico Creek, and San Luis Obispo, 3939799; 670221, 3939478; 670238, (ii) Note: Unit CA–14 (Map M46) California, land bounded by the 3939332; 670183, 3939330; proceed follows: following UTM 10 NAD 27 coordinates generally N following the mean low
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00118 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75725
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00119 Fmt 4701 Sfmt 4725 E:\FR\FM\17DEP2.SGM 17DEP2 EP17DE04.045 75726 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules
(51) Unit CA–15A, San Luis Obispo 684260, 3925827; 684349, 3925831; following the mean low water mark County, California. 684316, 3925944; 684374, 3925990; (defined at the beginning of the section) (i) From USGS 1:24,000 quadrangle 684389, 3926027; 684425, 3926024; and returning to 684204, 3925805. map Cayucos, California, land bounded 684453, 3925985; 684721, 3925617; (ii) Note: Unit CA–15A (Map M47) by the following UTM 10 NAD 27 684671, 3925608; proceed generally N follows: coordinates (E,N): 684204, 3925805;
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00120 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75727
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00121 Fmt 4701 Sfmt 4725 E:\FR\FM\17DEP2.SGM 17DEP2 EP17DE04.046 75728 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules
(52) Unit CA–15B, San Luis Obispo (E,N): 693585, 3919670; 693633, the mean low water mark (defined at the County, California. 3919693; 693966, 3918610; 694140, beginning of the section) and returning (i) From USGS 1:24,000 quadrangle 3918351; 694325, 3917088; 694276, to 693585, 3919670. maps Morro Bay North, and Morro Bay 3916964; 694380, 3916291; 694086, (ii) Note: Unit CA–15B (Map M48) South, California, land bounded by the 3916286; proceed generally N following follows: following UTM 10 NAD 27 coordinates
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00122 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75729
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00123 Fmt 4701 Sfmt 4725 E:\FR\FM\17DEP2.SGM 17DEP2 EP17DE04.047 75730 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules
(53) Unit CA–15C, San Luis Obispo 693706, 3910217; 693710, 3910248; 694306, 3913376; 694312, 3913393; County, California. 693714, 3910278; 693721, 3910306; 694317, 3913421; 694318, 3913453; (i) From USGS 1:24,000 quadrangle 693726, 3910314; 693735, 3910333; 694316, 3913478; 694315, 3913495; map Morro Bay South, California, land 693745, 3910367; 693757, 3910403; 694314, 3913515; 694313, 3913544; bounded by the following UTM 10 NAD 693764, 3910429; 693765, 3910430; 694311, 3913574; 694303, 3913640; 27 coordinates (E,N): 692781, 3907206; 693769, 3910450; 693770, 3910454; 694301, 3913666; 694301, 3913671; 692782, 3907207; 692792, 3907235; 693774, 3910478; 693783, 3910496; 694299, 3913699; 694296, 3913717; 692798, 3907251; 692812, 3907284; 693788, 3910508; 693792, 3910522; 694291, 3913744; 694291, 3913762; 692819, 3907312; 692820, 3907313; 693797, 3910540; 693798, 3910563; 694298, 3913786; 694304, 3913806; 692820, 3907315; 692829, 3907340; 693799, 3910572; 693799, 3910575; 694308, 3913813; 694310, 3913816; 692844, 3907380; 692848, 3907388; 693799, 3910576; 693806, 3910615; 694313, 3913828; 694311, 3913840; 692857, 3907410; 692858, 3907411; 693810, 3910636; 693811, 3910660; 694310, 3913842; 694305, 3913854; 692864, 3907430; 692873, 3907456; 693816, 3910691; 693816, 3910695; 694301, 3913871; 694301, 3913886; 692873, 3907456; 692889, 3907486; 693816, 3910710; 693817, 3910714; 694305, 3913910; 694309, 3913925; 692890, 3907486; 692894, 3907490; 693819, 3910733; 693826, 3910750; 694314, 3913934; 694320, 3913945; 692898, 3907508; 692901, 3907520; 693827, 3910750; 693830, 3910758; 694328, 3913968; 694329, 3913986; 692907, 3907547; 692911, 3907567; 693839, 3910780; 693848, 3910803; 694327, 3914003; 694325, 3914025; 692911, 3907568; 692918, 3907604; 693857, 3910836; 693860, 3910865; 694323, 3914034; 694321, 3914044; 692932, 3907627; 692932, 3907628; 693862, 3910878; 693862, 3910880; 694319, 3914067; 694320, 3914093; 692933, 3907630; 692944, 3907649; 693866, 3910893; 693869, 3910905; 694321, 3914111; 694321, 3914114; 692952, 3907668; 692955, 3907675; 693870, 3910906; 693874, 3910932; 694322, 3914130; 694322, 3914135; 692962, 3907693; 692964, 3907697; 693884, 3910962; 693888, 3910972; 694317, 3914153; 694317, 3914154; 692969, 3907731; 692977, 3907755; 693894, 3910990; 693903, 3911023; 694316, 3914155; 694314, 3914158; 692979, 3907764; 692981, 3907774; 693912, 3911050; 693918, 3911077; 694309, 3914167; 694304, 3914178; 692985, 3907793; 692996, 3907835; 693927, 3911109; 693930, 3911127; 694302, 3914191; 694306, 3914199; 693008, 3907868; 693019, 3907915; 693934, 3911143; 693943, 3911172; 694310, 3914207; 694319, 3914221; 693029, 3907949; 693040, 3907978; 693950, 3911195; 693952, 3911204; 694328, 3914229; 694337, 3914241; 693053, 3908014; 693064, 3908048; 693957, 3911235; 693957, 3911236; 694350, 3914257; 694360, 3914285; 693079, 3908088; 693091, 3908112; 693961, 3911266; 693964, 3911276; 694366, 3914305; 694369, 3914329; 693099, 3908128; 693104, 3908140; 693970, 3911300; 693971, 3911306; 694370, 3914350; 694369, 3914375; 693119, 3908176; 693133, 3908214; 693978, 3911334; 693983, 3911357; 694366, 3914398; 694362, 3914423; 693143, 3908243; 693145, 3908247; 693985, 3911372; 693986, 3911375; 694357, 3914435; 694348, 3914461; 693145, 3908248; 693154, 3908280; 693991, 3911409; 693997, 3911433; 694337, 3914486; 694317, 3914518; 693158, 3908305; 693161, 3908323; 694003, 3911455; 694007, 3911471; 694310, 3914545; 694313, 3914569; 693162, 3908330; 693163, 3908346; 694016, 3911511; 694020, 3911533; 694320, 3914595; 694331, 3914620; 693164, 3908370; 693173, 3908419; 694026, 3911567; 694031, 3911604; 694340, 3914640; 694340, 3914640; 693184, 3908464; 693193, 3908521; 694034, 3911625; 694038, 3911660; 694343, 3914661; 694342, 3914682; 693203, 3908563; 693213, 3908596; 694048, 3911693; 694058, 3911731; 694340, 3914701; 694338, 3914726; 693224, 3908624; 693233, 3908641; 694066, 3911765; 694070, 3911794; 694338, 3914728; 694337, 3914733; 693249, 3908674; 693268, 3908707; 694071, 3911814; 694080, 3911846; 694336, 3914742; 694334, 3914751; 693278, 3908732; 693290, 3908756; 694090, 3911879; 694096, 3911910; 694329, 3914776; 694320, 3914821; 693304, 3908794; 693311, 3908836; 694103, 3911949; 694107, 3911968; 694313, 3914853; 694335, 3914948; 693330, 3908896; 693336, 3908918; 694110, 3911979; 694117, 3912018; 694338, 3914951; 694346, 3914955; 693343, 3908945; 693348, 3908959; 694124, 3912065; 694129, 3912090; 694360, 3914962; 694371, 3914969; 693352, 3908969; 693356, 3908983; 694131, 3912100; 694139, 3912152; 694378, 3914975; 694390, 3914998; 693359, 3908996; 693371, 3909033; 694142, 3912184; 694147, 3912230; 694393, 3915003; 694410, 3915045; 693379, 3909057; 693392, 3909093; 694154, 3912266; 694156, 3912276; 694419, 3915082; 694421, 3915109; 693410, 3909137; 693423, 3909174; 694157, 3912283; 694161, 3912318; 694421, 3915112; 694454, 3915178; 693435, 3909198; 693440, 3909208; 694163, 3912336; 694165, 3912364; 694399, 3915243; 694394, 3915254; 693452, 3909245; 693462, 3909278; 694166, 3912374; 694171, 3912402; 694384, 3915283; 694376, 3915304; 693463, 3909283; 693468, 3909307; 694175, 3912422; 694183, 3912472; 694358, 3915342; 694348, 3915362; 693480, 3909339; 693492, 3909375; 694188, 3912514; 694192, 3912554; 694335, 3915390; 694324, 3915423; 693499, 3909405; 693502, 3909429; 694195, 3912588; 694203, 3912629; 694311, 3915456; 694307, 3915466; 693503, 3909440; 693515, 3909475; 694206, 3912646; 694209, 3912670; 694298, 3915485; 694275, 3915518; 693515, 3909475; 693519, 3909484; 694214, 3912694; 694217, 3912707; 694262, 3915541; 694253, 3915569; 693527, 3909500; 693540, 3909540; 694227, 3912756; 694230, 3912774; 694248, 3915595; 694244, 3915627; 693549, 3909573; 693559, 3909611; 694232, 3912792; 694233, 3912795; 694241, 3915638; 694239, 3915646; 693571, 3909651; 693580, 3909692; 694237, 3912815; 694239, 3912824; 694234, 3915662; 694221, 3915683; 693584, 3909711; 693584, 3909714; 694239, 3912829; 694245, 3912880; 694216, 3915694; 694217, 3915714; 693588, 3909735; 693594, 3909761; 694245, 3912895; 694246, 3912917; 694226, 3915733; 694240, 3915755; 693594, 3909763; 693598, 3909775; 694245, 3912936; 694245, 3912939; 694259, 3915772; 694275, 3915793; 693603, 3909795; 693611, 3909833; 694244, 3912952; 694248, 3912990; 694291, 3915812; 694308, 3915834; 693619, 3909856; 693623, 3909880; 694248, 3912996; 694251, 3913031; 694322, 3915847; 694337, 3915852; 693629, 3909916; 693637, 3909945; 694255, 3913080; 694255, 3913085; 694350, 3915856; 694372, 3915860; 693643, 3909976; 693649, 3910014; 694256, 3913130; 694261, 3913174; 694392, 3915858; 694415, 3915855; 693657, 3910048; 693662, 3910057; 694266, 3913224; 694269, 3913241; 694438, 3915847; 694449, 3915841; 693671, 3910078; 693680, 3910113; 694278, 3913274; 694288, 3913309; 694459, 3915836; 694475, 3915830; 693691, 3910152; 693700, 3910186; 694291, 3913320; 694300, 3913350; 694489, 3915824; 694502, 3915810;
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694509, 3915795; 694537, 3915758; 694727, 3915400; 694734, 3915389; 694860, 3914757; 694849, 3914734; 694545, 3915746; 694553, 3915724; 694731, 3915382; 694731, 3915360; 694835, 3914715; 694820, 3914701; 694560, 3915705; 694567, 3915678; 694736, 3915349; 694743, 3915341; 694816, 3914698; 694760, 3914672; 694570, 3915654; 694574, 3915629; 694754, 3915328; 694766, 3915315; 694750, 3914670; 694734, 3914661; 694578, 3915601; 694583, 3915586; 694772, 3915304; 694777, 3915295; 694722, 3914658; 694715, 3914657; 694591, 3915566; 694603, 3915543; 694778, 3915291; 694782, 3915276; 694701, 3914654; 694700, 3914655; 694617, 3915528; 694637, 3915515; 694787, 3915251; 694799, 3915230; 694682, 3914660; 694668, 3914662; 694640, 3915514; 694665, 3915479; 694827, 3915190; 694835, 3915175; 694653, 3914664; 694646, 3914659; 694690, 3915497; 694693, 3915496; 694842, 3915159; 694855, 3915140; 694641, 3914655; 694640, 3914644; 694708, 3915494; 694725, 3915497; 694865, 3915114; 694870, 3915082; 694640, 3914643; 694537, 3914633; 694741, 3915498; 694755, 3915503; 694872, 3915049; 694873, 3915025; 694493, 3912072; 693979, 3909827; 694771, 3915510; 694783, 3915516; 694875, 3915004; 694880, 3914984; 693393, 3908394; 693227, 3908218; 694792, 3915513; 694793, 3915512; 694888, 3914971; 694904, 3914950; 694796, 3915500; 694793, 3915489; 694918, 3914932; 694918, 3914930; 692844, 3907170; returning to 692781, 694789, 3915481; 694781, 3915469; 694906, 3914847; 694900, 3914844; 3907206. 694769, 3915455; 694757, 3915439; 694890, 3914835; 694874, 3914818; (ii) Note: Unit CA–15C (Map M49) 694744, 3915418; 694742, 3915412; 694870, 3914802; 694867, 3914782; follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00125 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 75732 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00126 Fmt 4701 Sfmt 4725 E:\FR\FM\17DEP2.SGM 17DEP2 EP17DE04.048 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules 75733
(54) Unit CA–16, San Luis Obispo 3886355; 716320, 3885910; 716372, 3870983; 714534, 3870558; 714455, County and Santa Barbara County, 3885535; 716417, 3884858; 716535, 3870153; 714290, 3869967; 714172, California. 3883709; 716521, 3881135; 716206, 3869737; 714111, 3869499; 713949, (i) From USGS 1:24,000 quadrangle 3879117; 716116, 3878752; 716253, 3868871; 713632, 3868026; 713520, map Oceano, and Point Sal, California, 3878614; 716040, 3877287; 715746, 3868000; 713519, 3868000; proceed land bounded by the following UTM 10 3877371; proceed generally S following generally N following the mean low NAD 27 coordinates (E,N): 716010, the mean high water mark (defined at water mark (defined at the beginning of 3886811; 716094, 3886816; 716121, the beginning of the section) to 715166, the section) and returning to 716010, 3886579; 716254, 3886552; 716772, 3874495; 715525, 3874507; 715250, 3886811. 3886498; 716766, 3886452; 716397, 3873350; 715030, 3872453; 715438, (ii) Note: Unit CA–16 (Map M50) 3886500; 716268, 3886463; 716290, 3871950; 714967, 3871240; 714652, follows:
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00127 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 75734 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules
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(55) Unit CA–17A, Santa Barbara 718980, 3857623; 718843, 3857449; 717224, 3850849; 717102, 3850474; County, California. 718816, 3857394; 718744, 3857048; 716886, 3849862; 716695, 3849335; (i) From USGS 1:24,000 quadrangle 718533, 3856131; 718400, 3855518; 716690, 3849302; 716693, 3849258; map Casmalia, California, land bounded 718243, 3854896; 718224, 3854702; 716537, 3849301; proceed generally N by the following UTM 10 NAD 27 718242, 3854537; 718219, 3854201; following the mean low water mark coordinates (E,N): 718417, 3860038; 718006, 3853479; 717882, 3852878; (defined at the beginning of the section) 718490, 3860043; 718607, 3859702; 717872, 3852758; 717856, 3852656; and returning to 718417, 3860038. 718745, 3859447; 718961, 3858992; 717876, 3852600; 717668, 3852144; (iii) Note: Unit CA–17A, CA–16 (Map 718964, 3858805; 719013, 3858215; 717560, 3851901; 717428, 3851229; M51) follows:
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(56) Unit CA–17B, Santa Barbara 721005, 3841129; 721135, 3841217; 718330, 3836450; 718271, 3836264; County, California. 721280, 3841146; 721095, 3840903; 718231, 3836161; 718163, 3835954; (i) From USGS 1:24,000 quadrangle 719884, 3841261; 719636, 3840850; 718101, 3835825; 718020, 3835652; map Surf, California, land bounded by 719484, 3840448; 719472, 3840355; 717974, 3835665; proceed generally N the following UTM 10 NAD 27 719446, 3840177; 719348, 3839786; following the mean low water mark coordinates (E,N): 719851, 3842705; 719262, 3839306; 719203, 3839200; (defined at the beginning of the section) 719957, 3842714; 719985, 3842661; 719118, 3838777; 718998, 3838473; and returning to 719851, 3842705. 719834, 3841798; 719969, 3841456; 718871, 3838118; 718643, 3837345; (ii) Note: Unit CA–17B (Map M52) 720330, 3841518; 720642, 3841396; 718540, 3837006; 718400, 3836612; 720821, 3841242; 720936, 3841146; follows:
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(57) Unit CA–18, Santa Barbara 3811862; 234938, 3811694; 235005, 3811084; 236074, 3811089; 236175, County, California. 3811597; 235067, 3811524; 235171, 3811083; 236270, 3811077; 236314, (i) From USGS 1:24,000 quadrangle 3811381; 235232, 3811310; 235359, 3811067; 236310, 3811029; proceed maps Dos Pueblos Canyon, and Goleta, 3811141; 235381, 3811072; 235424, generally N following the mean low California, land bounded by the 3811010; 235428, 3810963; 235437, water mark (defined at the beginning of following UTM 11 NAD 27 coordinates 3810924; 235477, 3810884; 235498, the section) and returning to 234194, (E,N): 234194, 3812313; 234195, 3810866; 235532, 3810858; 235570, 3812313. 3812330; 234324, 3812283; 234446, 3810877; 235592, 3810897; 235616, 3812230; 234583, 3812107; 234686, 3810922; 235681, 3810981; 235729, (ii) Note: Unit CA–18 (Map M53) 3812003; 234773, 3811918; 234823, 3811016; 235817, 3811054; 235933, follows:
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(58) Unit CA–19A, Ventura County, 293789, 3790422; 293909, 3790178; 293526, 3784688; 293569, 3784701; California. 292342, 3790186; 291693, 3789833; 293823, 3784111; 293981, 3783717; (i) From USGS 1:24,000 quadrangle 291920, 3789159; 292048, 3788658; 293908, 3783715 ; proceed generally N map Oxnard, California, land bounded 292238, 3788005; 292271, 3787968; following the mean low water mark by the following UTM 11 NAD 27 292297, 3787886; 292292, 3787826; (defined at the beginning of the section) coordinates (E,N): 291335, 3791012; 292351, 3787673; 292404, 3787548; and returning to 291335, 3791012. 291362, 3791013; 291410, 3790772; 292400, 3787482; 292954, 3786197; (ii) Note: Unit CA–19A (Map M54) 291536, 3790654; 291943, 3790429; 293048, 3785979; 293018, 3785959; follows:
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(59) Unit CA–19B, Ventura County, 3780182; 297633, 3780001; 298075, generally N following the mean low California. 3779695; 298150, 3779675; 299371, water mark (defined at the beginning of (i) From USGS 1:24,000 quadrangle 3778748; 299746, 3778489; 300378, the section) and returning to 297242, maps Oxnard, and Point Magu, 3777964; 300888, 3777929; 300911, 3780065. California, land bounded by the 3777924; 300923, 3777917; 300936, (ii) Note: Unit CA–19B (Map M55) following UTM 11 NAD 27 coordinates 3777908; 300956, 3777892; 301219, follows: (E,N): 297242, 3780065; 297270, 3777693; 300831, 3777265; proceed
VerDate jul<14>2003 17:27 Dec 16, 2004 Jkt 205001 PO 00000 Frm 00137 Fmt 4701 Sfmt 4702 E:\FR\FM\17DEP2.SGM 17DEP2 75744 Federal Register / Vol. 69, No. 242 / Friday, December 17, 2004 / Proposed Rules
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(60) Unit CA–19C, Ventura County, 304533, 3774878; 305022, 3774694; 307473, 3774933; 307515, 3774930; California. 305135, 3774657; 305287, 3774614; 307592, 3774932; 307665, 3774920; (i) From USGS 1:24,000 quadrangle 305378, 3774610; 305354, 3774466; 307724, 3774893; 307886, 3774797; map Point Magu, California, land proceed generally N following the mean 308323, 3774520; 308554, 3774400; bounded by the following UTM 11 NAD low water mark (defined at the 308749, 3774285; 309003, 3774129; 27 coordinates (E,N): 300845, 3777255; beginning of the section) and returning 309066, 3774010; 309124, 3773949; 301242, 3777694; 301744, 3777320; to 300845, 3777255. 309180, 3773968; 309216, 3773942; 301505, 3777003; 302074, 3776528; (ii) Note: Unit CA–19C, CA–19D (Map 309406, 3773838; 309560, 3773719; 302001, 3776440; 302073, 3776379; M56) follows after description of CA– 309596, 3773763; 309661, 3773726; 302372, 3776131; 302440, 3776080; 19D: 309714, 3773654; 309836, 3773503; 302461, 3776035; 302653, 3775922; (61) Unit CA–19D, Ventura County, 309847, 3773468; 309815, 3773441; 303304, 3775537; 303622, 3775847; California. proceed generally N following the mean 303870, 3775681; 303608, 3775334; (i) From USGS 1:24,000 quadrangle low water mark (defined at the 303698, 3775279; 303695, 3775247; map Point Magu, California, land beginning of the section) and returning 303811, 3775189; 304080, 3775103; bounded by the following UTM 11 NAD to 307477, 3774839. 304118, 3775054; 304190, 3775022; 27 coordinates (E,N): 307477, 3774839; (ii) Note: Unit CA–19C, CA–19D (Map 304227, 3775060; 304493, 3774937; 307464, 3774840; 307456, 3774930; M56) follows:
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(62) Unit CA–20, Los Angeles County, 330155, 3766656; 330233, 3766591; 332052, 3765196; 332076, 3765189; California. 330253, 3766588; 330272, 3766589; 332121, 3765165; 332140, 3765152; (i) From USGS 1:24,000 quadrangle 330283, 3766586; 330337, 3766538; 332146, 3765142; 332147, 3765126; map Point Dume, California, land 330324, 3766526; 330377, 3766467; 332122, 3765074; 332087, 3765013; bounded by the following UTM 11 NAD 330388, 3766467; 330428, 3766419; 332081, 3764993; 332081, 3764972; 27 coordinates (E,N): 329781, 3766839; 330503, 3766346; 330597, 3766260; 332083, 3764966; 332099, 3764935; 329816, 3766887; 329836, 3766875; 330733, 3766164; 330734, 3766150; 332103, 3764929; 332037, 3764863; 329851, 3766892; 329890, 3766865; 330742, 3766140; 330970, 3765974; proceed generally N following the mean 329899, 3766877; 329886, 3766885; 331003, 3765952; 331025, 3765933; low water mark (defined at the 329912, 3766923; 329924, 3766912; 331045, 3765912; 331281, 3765663; beginning of the section) and returning 329965, 3766877; 329924, 3766830; 329985, 3766786; 330017, 3766822; 331539, 3765394; 331669, 3765298; to 329781, 3766839. 330095, 3766754; 330094, 3766751; 331791, 3765248; 331956, 3765199; (ii) Note: Unit CA–20 (Map M57) 330084, 3766734; 330081, 3766721; 331981, 3765198; 332021, 3765195; follows:
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(63) Unit CA–21A, Los Angeles 359794, 3766072; 359841, 3766016; 360782, 3765167; 360750, 3765131; County, California. 359865, 3765980; 359868, 3765955; proceed generally N following the mean (i) From USGS 1:24,000 quadrangle 359871, 3765928; 359981, 3765838; low water mark (defined at the map Topanga, California, land bounded 360136, 3765710; 360156, 3765737; beginning of the section) and returning by the following UTM 11 NAD 27 360157, 3765740; 360346, 3765605; to 359653, 3766064. coordinates (E,N): 359653, 3766064; 360713, 3765301; 360821, 3765208; 359698, 3766104; 359706, 3766112; (ii) Note: Unit CA–21A (M58) follows:
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(64) Unit CA–21B, Los Angeles (ii) Note: Unit CA–21B, CA–21C (Map 367945, 3753827; 367911, 3753766; County, California. M59) follows after description of CA– 367924, 3753739; 367968, 3753730; (i) From USGS 1:24,000 quadrangle 21C: 368021, 3753592; 368235, 3753042; map Venice, California, land bounded (65) Unit CA–21C, Los Angeles 368173, 3753011; proceed generally N by the following UTM 11 NAD 27 County, California. following the mean low water mark coordinates (E,N): 366261, 3757311; (i) From USGS 1:24,000 quadrangle (defined at the beginning of the section) 366467, 3757409; 366791, 3756716; map Venice, California, land bounded and returning to 367740, 3753997. 366577, 3756633; proceed generally N by the following UTM 11 NAD 27 following the mean low water mark coordinates (E,N): 367740, 3753997; (ii) Note: Unit CA–21B, CA–21C (Map (defined at the beginning of the section) 367843, 3754038; 367860, 3754002; M59) follows: and returning to 366261, 3757311. 367883, 3753980; 367924, 3753925;
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(66) Unit CA–21D, Los Angeles NAD 27 coordinates (E,N): 370468, beginning of the section) and returning County, California. 3747024; 370560, 3747050; 370594, to 370468, 3747024. (i) From USGS 1:24,000 quadrangle 3746936; 370696, 3746667; 370602, (ii) Note: Unit CA–21D (Map M60) map Redondo Beach OE S, California, 3746644; proceed generally N following follows: land bounded by the following UTM 11 the mean low water mark (defined at the
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(67) Unit CA–22A, Orange County, 405113, 3727543; 405081, 3727505; (68) Unit CA–22B, Orange County, California. 405050, 3727457; 405006, 3727428; California. (i) From USGS 1:24,000 quadrangle 404907, 3727378; 404859, 3727355; (i) From USGS 1:24,000 quadrangle map Seal Beach, California, land 404833, 3727349; 404801, 3727356; map Seal Beach, California, land bounded by the following UTM 11 NAD 404766, 3727373; 404712, 3727387; bounded by the following UTM 11 NAD 27 coordinates (E,N): 403074, 3728680; 404584, 3727405; 404557, 3727413; 27 coordinates (E,N): 404089, 3727241; 403074, 3728681; 403267, 3728834; 404529, 3727431; 404495, 3727462; 403265, 3728996; 403238, 3729044; 404465, 3727486; 404426, 3727492; 404122, 3727265; 404183, 3727186; 403290, 3729077; 403342, 3729164; 404372, 3727479; 404183, 3727422; 404256, 3727101; 404389, 3726951; 403545, 3729348; 403571, 3729356; 403756, 3727974; 403749, 3727975; 404360, 3726921; proceed generally N 403635, 3729419; 404409, 3729117; 403740, 3727969; 403720, 3727949; following the mean low water mark 404407, 3728750; 404398, 3728717; 403709, 3727950; 403697, 3727958; (defined at the beginning of the section) 404399, 3728532; 404464, 3728525; 403684, 3727961; 403653, 3727943; and returning to 404089, 3727241. 404727, 3728380; 404729, 3728299; returning to 403074, 3728680. (ii) Note: Unit CA–22A, CA–22B (Map 405337, 3727975; 405370, 3727979; (ii) Note: Unit CA–22A, CA–22B M61) follows: 405369, 3727845; 405358, 3727807; follows after description of CA–22B 405339, 3727778; 405295, 3727725; (Map M61):
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(69) Unit CA–23, Orange County, 411217, 3721493; 411224, 3721488; 410958, 3721437; 410939, 3721452; California. 411220, 3721483; 411201, 3721465; 410903, 3721473; 410888, 3721489; (i) From USGS 1:24,000 quadrangle 411198, 3721462; 411173, 3721438; 410971, 3721619; 410978, 3721616; map Newport Beach, California, land 411154, 3721408; 411133, 3721368; 410989, 3721606; 410997, 3721617; bounded by the following UTM 11 NAD 411117, 3721336; 411106, 3721293; 411008, 3721631; 411140, 3721534; 27 coordinates (E,N): 411152, 3721501; 411094, 3721298; 411074, 3721321; 411157, 3721515; returning to 411152, 411152, 3721498; 411154, 3721486; 411069, 3721327; 411061, 3721335; 3721501. 411161, 3721477; 411171, 3721472; 411054, 3721344; 411043, 3721354; 411183, 3721471; 411189, 3721473; 411039, 3721358; 411018, 3721375; (ii) Note: Unit CA–23 (Map M62) 411197, 3721476; 411208, 3721485; 411000, 3721392; 410981, 3721413; follows:
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(70) Unit CA–24, Orange County and 444781, 3694151; 444839, 3694107; 446386, 3693472; 446397, 3693463; San Diego County California. 444910, 3694061; 445036, 3694001; 446406, 3693458; 446402, 3693402; (i) From USGS 1:24,000 quadrangle 445277, 3693888; 445568, 3693753; proceed generally N following the mean map San Clemente, California, land 445795, 3693645; 446006, 3693555; low water mark (defined at the bounded by the following UTM 11 NAD 446080, 3693536; 446167, 3693524; beginning of the section) and returning 27 coordinates (E,N): 444536, 3694354; 446250, 3693516; 446261, 3693516; to 444536, 3694354. 444588, 3694374; 444627, 3694314; 446310, 3693514; 446375, 3693511; (ii) Note: Unit CA–24 (Map M63) 444645, 3694291; 444658, 3694275; 446376, 3693489; 446377, 3693480; 444675, 3694251; 444717, 3694206; follows:
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(71) Unit CA–25A, San Diego County 470859, 3660754; 470862, 3660764; (i) From USGS 1:24,000 quadrangle California. 470866, 3660765; 470874, 3660770; map Oceanside, California, land (i) From USGS 1:24,000 quadrangle 470903, 3660785; 470962, 3660804; bounded by the following UTM 11 NAD map Encinitas, California, land bounded returning to 470975, 3660809. 27 coordinates (E,N): 474053, 3661505; by the following UTM 11 NAD 27 (ii) Note: Unit CA–25A (Map M64) 474074, 3661515; 474082, 3661492; coordinates (E,N): 470975, 3660809; follows description of CA–25C: 474109, 3661464; 474118, 3661461; 470982, 3660811; 471014, 3660802; (72) Unit CA–25B, San Diego County 474119, 3661450; 474144, 3661424; 471058, 3660765; 471085, 3660733; California. 474169, 3661398; 474189, 3661386; 471105, 3660704; 471122, 3660645; (i) From USGS 1:24,000 quadrangle 474201, 3661384; 474210, 3661378; 471129, 3660592; 471148, 3660540; map Oceanside, California, land 474228, 3661376; 474237, 3661377; 471147, 3660511; 471155, 3660493; bounded by the following UTM 11 NAD 471153, 3660485; 471153, 3660485; 27 coordinates (E,N): 472453, 3660939; 474247, 3661359; 474263, 3661344; 471147, 3660482; 471122, 3660510; 472518, 3660920; 472571, 3660894; 474302, 3661334; 474357, 3661336; 471112, 3660507; 471106, 3660501; 472603, 3660856; 472613, 3660817; 474385, 3661334; 474386, 3661294; 471067, 3660464; 471066, 3660464; 472614, 3660776; 472576, 3660736; 474393, 3661252; 474413, 3661233; 471081, 3660447; 471084, 3660437; 472538, 3660692; 472498, 3660666; 474450, 3661217; 474494, 3661203; 471084, 3660417; 471077, 3660393; 472478, 3660670; 472452, 3660693; 474539, 3661214; 474584, 3661200; 471077, 3660378; 471085, 3660361; 472451, 3660695; 472404, 3660732; 474628, 3661181; 474654, 3661143; 471044, 3660341; 471013, 3660349; 472373, 3660751; 472352, 3660760; 474615, 3661062; 474594, 3661042; 471002, 3660338; 470992, 3660306; 472335, 3660762; 472311, 3660758; 474562, 3661043; 474543, 3661039; 470980, 3660296; 470977, 3660316; 472296, 3660748; 472282, 3660746; 474530, 3661043; 474504, 3661070; 470969, 3660338; 470968, 3660341; 472264, 3660752; 472244, 3660769; 474472, 3661111; 474452, 3661130; 470962, 3660360; 470955, 3660391; 472209, 3660804; 472183, 3660843; 474380, 3661179; 474321, 3661194; 470949, 3660420; 470943, 3660453; 472164, 3660882; 472153, 3660903; 474236, 3661205; 474200, 3661211; 470942, 3660456; 470933, 3660489; 472145, 3660929; 472156, 3660952; 474166, 3661225; 474140, 3661244; 470925, 3660522; 470924, 3660525; 472190, 3660981; 472223, 3660990; 474113, 3661268; 474081, 3661304; 470914, 3660562; 470907, 3660588; 472288, 3660980; 472393, 3660956; 474075, 3661333; 474076, 3661393; 470906, 3660597; 470901, 3660624; returning to 472453, 3660939. 474075, 3661440; 474048, 3661501; 470893, 3660651; 470892, 3660654; (ii) Note: Unit CA–25B (Map M64) returning to 474053, 3661505. 470884, 3660676; 470877, 3660694; follows description of CA–25C: 470872, 3660706; 470864, 3660726; (73) Unit CA–25C, San Diego County (ii) Note: Unit CA–25A, CA–25B, CA– 470861, 3660740; 470860, 3660742; California. 25C (Map M64) follows:
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(74) Unit CA–26, San Diego County 475688, 3644001; 475693, 3643983; 475713, 3643871; 475701, 3643870; California. 475694, 3643965; 475701, 3643945; 475700, 3643870; 475699, 3643869; (i) From USGS 1:24,000 quadrangle 475704, 3643929; 475708, 3643891; 475690, 3643866; 475667, 3643865; map Del Mar California, land bounded 475733, 3643895; 475749, 3643893; 475660, 3643894; 475657, 3643904; by the following UTM 11 NAD 27 475778, 3643878; 475815, 3643868; 475652, 3643926; 475647, 3643946; coordinates (E,N): 475548, 3644417; 475826, 3643878; 475869, 3643912; 475644, 3643956; 475641, 3643964; 475597, 3644428; 475626, 3644433; 475883, 3643920; 475893, 3643930; 475635, 3643986; 475630, 3644011; 475629, 3644418; 475632, 3644391; 475909, 3643935; 475919, 3643943; 475622, 3644032; 475613, 3644053; 475625, 3644370; 475626, 3644353; 475930, 3643950; 475923, 3643429; 475606, 3644077; 475599, 3644101; 475627, 3644350; 475633, 3644335; 475917, 3643436; 475902, 3643454; 475595, 3644132; 475593, 3644149; 475628, 3644322; 475637, 3644298; 475885, 3643478; 475864, 3643509; 475590, 3644179; 475586, 3644211; 475640, 3644293; 475647, 3644279; 475851, 3643533; 475838, 3643545; 475582, 3644230; 475580, 3644243; 475649, 3644271; 475641, 3644267; 475824, 3643566; 475804, 3643590; 475578, 3644258; 475573, 3644280; 475639, 3644267; 475635, 3644257; 475788, 3643603; 475774, 3643706; 475638, 3644237; 475642, 3644195; 475763, 3643718; 475756, 3643749; 475567, 3644312; 475563, 3644337; 475643, 3644190; 475648, 3644165; 475750, 3643781; 475748, 3643798; 475555, 3644376; 475550, 3644411; 475657, 3644139; 475658, 3644120; 475714, 3643792; 475685, 3643787; returning to 475548, 3644417. 475664, 3644091; 475671, 3644073; 475683, 3643797; 475689, 3643805; (ii) Note: Unit CA–26 (Map M65) 475674, 3644054; 475683, 3644029; 475711, 3643807; 475723, 3643809; follows:
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(75) Unit CA–27A, San Diego County 480355, 3616704; 480370, 3616642; (76) Unit CA–27B, San Diego County California. 480373, 3616631; 480380, 3616624; California. (i) From USGS 1:24,000 quadrangle 480389, 3616622; 480397, 3616623; (i) From USGS 1:24,000 quadrangle map Point Loma, California, land 480405, 3616627; 480410, 3616636; map Point Loma, California, land bounded by the following UTM 11 NAD 480411, 3616650; 480413, 3616659; bounded by the following UTM 11 NAD 27 coordinates (E,N): 479126, 3615994; 480476, 3616651; 480477, 3616641; 479126, 3615993; 479125, 3615995; 27 coordinates (E,N): 481501, 3616480; 480456, 3616627; 480448, 3616538; 481510, 3616481; 481524, 3616453; 479119, 3616121; 479161, 3616166; 480499, 3616545; 480501, 3616583; 479181, 3616153; 479197, 3616150; 481540, 3616447; 481565, 3616444; 480514, 3616594; 480528, 3616601; 481580, 3616449; 481601, 3616462; 479209, 3616148; 479227, 3616151; 480555, 3616606; 480554, 3616578; 481613, 3616490; 481630, 3616491; 479254, 3616161; 479278, 3616176; 480641, 3616578; 480641, 3616614; 481669, 3616488; 481690, 3616481; 479286, 3616192; 479300, 3616240; 480751, 3616615; 480766, 3616610; 481734, 3616460; 481794, 3616435; 479319, 3616303; 479420, 3616659; 480799, 3616622; 480843, 3616608; 479554, 3616619; 479506, 3616450; 481826, 3616413; 481836, 3616401; 480858, 3616639; 480911, 3616631; 479571, 3616432; 479613, 3616586; 481893, 3616389; 481928, 3616379; 480936, 3616594; 480953, 3616611; 479655, 3616576; 479717, 3616559; 481996, 3616538; 481998, 3616537; 480963, 3616612; 481116, 3616586; 479766, 3616549; 479802, 3616544; 481129, 3616600; 481142, 3616589; 482008, 3616531; 482011, 3616518; 479828, 3616545; 479842, 3616550; 482024, 3616510; 482038, 3616511; 479862, 3616562; 479881, 3616583; 481159, 3616582; 481172, 3616578; 481181, 3616571; 481219, 3616553; 482160, 3616439; 482347, 3616345; 479895, 3616613; 479907, 3616644; 482534, 3616238; 482693, 3616137; 479940, 3616765; 479957, 3616756; 481271, 3616530; 481345, 3616483; 481371, 3616479; 481387, 3616480; 482984, 3615950; 483137, 3615853; 479951, 3616729; 480004, 3616700; 483030, 3615679; proceed generally N 480012, 3616701; 480022, 3616709; 481442, 3616468; proceed generally N following the mean low water mark following the mean low water mark 480026, 3616723; 480028, 3616729; (defined at the beginning of the section) 480195, 3616713; 480182, 3616662; (defined at the beginning of the section) and returning to 481501, 3616480. 480200, 3616648; 480276, 3616656; and returning to 479126, 3615994. 480321, 3616667; 480331, 3616671; (ii) Note: Unit CA–27A (Map M66) (ii) Note: Unit CA–27A, CA–27B (Map 480340, 3616680; 480351, 3616690; follows after description of CA–27B: M66) follows:
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(77) Unit CA–27C, San Diego County (78) Unit CA–27D, San Diego County 485412, 3613528; 485324, 3613668; California. California. 485259, 3613777; 485199, 3613873; (i) From USGS 1:24,000 quadrangle (i) From USGS 1:24,000 quadrangle 485147, 3613959; 485129, 3613989; map Point Loma, California, land map Point Loma, California, land 485093, 3614039; returning to 485114, bounded by the following UTM 11 NAD bounded by the following UTM 11 NAD 3614041. 27 coordinates (E,N): 486529, 3610849; 27 coordinates (E,N): 485114, 3614041; (ii) Note: Unit CA–27D (Map M67) 486590, 3610876; 486697, 3610598; 485128, 3614042; 485141, 3614041; follows description of CA–27E: 486721, 3610571; 486806, 3610351; 485160, 3614042; 485222, 3614046; (79) Unit CA–27E, San Diego County 486791, 3610346; 486791, 3610346; 485267, 3614045; 485305, 3614039; California. 486810, 3610292; 486828, 3610297; 485352, 3614014; 485373, 3613993; 486915, 3610068; 486968, 3609885; 485394, 3613957; 485445, 3613804; (i) From USGS 1:24,000 quadrangle 487000, 3609790; 487047, 3609793; 485477, 3613712; 485497, 3613654; map National City, California, land 487051, 3609721; 487041, 3609693; 485500, 3613623; 485497, 3613609; bounded by the following UTM 11 NAD 487041, 3609670; 487050, 3609648; 485480, 3613566; 485477, 3613534; 27 coordinates (E,N): 489220, 3611973; 487058, 3609626; 487065, 3609546; 485488, 3613511; 485545, 3613421; 489501, 3612069; 489791, 3612166; 487103, 3609482; 487170, 3609371; 485577, 3613363; 485592, 3613321; 490070, 3612259; 490144, 3612287; 487175, 3609357; 487222, 3609239; 485608, 3613292; 485626, 3613274; 490269, 3611906; 490231, 3611887; 487251, 3609137; 487298, 3608920; 485668, 3613265; 485769, 3613259; 490217, 3611878; 490174, 3611856; 487335, 3608746; 487384, 3608522; 485804, 3613275; 485834, 3613276; 490047, 3611789; 490028, 3611784; 487446, 3608167; 487470, 3608089; 485877, 3613258; 485934, 3613227; 489947, 3611738; 489878, 3611704; 487507, 3607994; 487566, 3607901; 485996, 3613178; 486024, 3613158; 489865, 3611701; 489834, 3611692; 487610, 3607822; 487614, 3607815; 486037, 3613138; 486039, 3613136; 489806, 3611682; 489792, 3611676; 487621, 3607803; 487627, 3607794; 486052, 3613096; 486092, 3613034; 489727, 3611655; 489611, 3611609; 487620, 3607787; 487595, 3607786; 486141, 3612974; 486161, 3612948; 489580, 3611587; 489555, 3611597; 487596, 3607778; 487639, 3607312; 486175, 3612932; 486201, 3612904; 489521, 3611593; 489412, 3611550; 487656, 3607070; 487682, 3606753; 486208, 3612886; 486216, 3612864; 489384, 3611531; 489366, 3611519; 487704, 3606480; 487715, 3606311; 486217, 3612860; 486222, 3612823; 489331, 3611518; 489282, 3611513; 487726, 3606117; 487734, 3606015; 486224, 3612808; 486225, 3612805; 489259, 3611508; 489253, 3611511; 487729, 3605961; 487727, 3605928; 486226, 3612799; 486226, 3612798; 489253, 3611512; 489237, 3611505; 487729, 3605912; 487732, 3605901; 486225, 3612795; 486219, 3612760; 489229, 3611501; 489208, 3611497; 487730, 3605891; 487718, 3605882; 486208, 3612735; 486188, 3612721; 489161, 3611496; 489138, 3611503; 487719, 3605861; 487725, 3605845; 486171, 3612720; 486147, 3612726; 489122, 3611535; 489097, 3611608; 487724, 3605828; 487730, 3605815; 486134, 3612736; 486130, 3612739; 489093, 3611675; 489094, 3611724; 487730, 3605792; 487724, 3605671; 486118, 3612748; 486106, 3612747; 489101, 3611774; 489123, 3611843; 487723, 3605629; 487728, 3605617; 486093, 3612745; 486071, 3612729; 489166, 3611914; 489200, 3611955; 487723, 3605556; 487723, 3605531; 486053, 3612723; 486016, 3612707; 489201, 3611954; 489200, 3611942; 487723, 3605514; 487711, 3605502; 485992, 3612690; 485990, 3612687; 489199, 3611931; 489204, 3611920; 487720, 3605431; 487714, 3605403; 485977, 3612673; 485968, 3612643; 489210, 3611918; 489219, 3611920; 487696, 3605404; 487683, 3605384; 485967, 3612640; 485965, 3612636; 489228, 3611922; 489240, 3611929; 487610, 3605382; proceed generally N 485957, 3612632; 485956, 3612632; 489246, 3611938; 489245, 3611947; following the mean low water mark 485945, 3612623; 485944, 3612615; 489237, 3611952; 489225, 3611959; (defined at the beginning of the section) 485940, 3612604; 485909, 3612588; 489219, 3611969; returning to 489220, and returning to 486529, 3610849. 485873, 3612670; 485831, 3612750; 3611973. (ii) Note: Unit CA–27C (Map M67) 485761, 3612890; 485715, 3612978; (ii) Note: Unit CA–27C, CA–27D, CA– follows description of CA–27E: 485654, 3613095; 485491, 3613400; 27E (Map M67) follows:
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(80) Unit CA–27F, San Diego County 487885, 3602334; 487934, 3602307; 488363, 3601101; 488380, 3601046; California. 487986, 3602298; 488089, 3602283; 488392, 3601034; 488388, 3601016; (i) From USGS 1:24,000 quadrangle 488127, 3602267; 488150, 3602257; 488385, 3601005; 488397, 3600864; map Imperial Beach, California, land 488190, 3602119; 488214, 3602039; 488413, 3600789; 488430, 3600752; bounded by the following UTM 11 NAD 488220, 3602020; 488218, 3601977; 488441, 3600706; 488455, 3600622; 27 coordinates (E,N): 487590, 3603045; 488214, 3601966; 488209, 3601953; 488459, 3600571; 488461, 3600541; 487669, 3603044; 487679, 3603053; 488198, 3601927; 488220, 3601871; 488515, 3600211; 488512, 3600098; 487681, 3603072; 487696, 3603063; 488226, 3601840; 488221, 3601817; 488524, 3599982; 488542, 3599731; 487704, 3603062; 487746, 3603052; 488206, 3601801; 488178, 3601790; 488519, 3599700; 488496, 3599678; 487774, 3603045; 487774, 3602997; 488176, 3601765; 488182, 3601680; 488484, 3599657; 488480, 3599606; 487776, 3602973; 487782, 3602889; 488201, 3601523; 488202, 3601513; 488479, 3599545; 488485, 3599487; 487784, 3602854; 487795, 3602816; 488218, 3601457; 488234, 3601397; 488390, 3599478; proceed generally N 487852, 3602713; 487854, 3602707; 488267, 3601351; 488292, 3601336; following the mean low water mark 487856, 3602705; 487883, 3602673; 488296, 3601327; 488297, 3601324; 487895, 3602624; 487899, 3602575; 488289, 3601310; 488288, 3601309; (defined at the beginning of the section) 487887, 3602515; 487865, 3602450; 488293, 3601261; 488307, 3601227; and returning to 487590, 3603045. 487840, 3602415; 487840, 3602398; 488337, 3601155; 488349, 3601138; (ii) Note: Unit CA–27F (Map M68) 487845, 3602382; 487865, 3602353; 488372, 3601125; 488369, 3601108; follows:
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* * * * * Dated: December 1, 2004. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 04–26877 Filed 12–16–04; 8:45 am] BILLING CODE 4310–55–C
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Part III
Securities and Exchange Commission 17 CFR Parts 228, 229 et al. Amendments to Regulation M: Anti- Manipulation Rules Concerning Securities Offerings; Proposed Rule
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SECURITIES AND EXCHANGE Paper Comments Commission has focused its regulation COMMISSION • Send paper comments in triplicate on market activities that could to Jonathan G. Katz, Secretary, artificially facilitate an offering. 17 CFR Parts 228, 229, 230, 240 and Securities and Exchange Commission, Because price integrity is essential 242 450 Fifth Street, NW., Washington, DC during a securities offering, the 20549–0609. Commission adopted rules to proscribe [Release Nos. 33–8511; 34–50831; IC– All submissions should refer to File and regulate activities that offering 26691; File No. S7–41–04] Number S7–41–04. This file number participants could use to manipulate the should be included on the subject line price of the offered security. The anti- RIN 3235–AF54 if e-mail is used. To help us process and manipulation rules were first codified in 2 review your comments more efficiently, 1955, and today, Regulation M 3 Amendments to Regulation M: Anti- please use only one method. The incorporates these provisions. Manipulation Rules Concerning Commission will post all comments on Regulation M, among other things, Securities Offerings the Commission’s Internet Web site prohibits issuers, selling security (http://www.sec.gov/rules/ holders, underwriters, broker-dealers, AGENCY: Securities and Exchange and other distribution participants 4 Commission. proposed.shtml). Comments are also available for public inspection and from directly or indirectly bidding for, ACTION: Proposed rule. copying in the Commission’s Public purchasing, or attempting to induce any Reference Room, 450 Fifth Street, NW., person to bid for or purchase any SUMMARY: The Securities and Exchange Washington, DC 20549. All comments security that is the subject of the Commission (Commission) is proposing received will be posted without change; distribution during the applicable amendments to Regulation M under the 5 we do not edit personal identifying restricted period. Regulation M Securities Exchange Act of 1934 information from submissions. You proscribes activities that may increase a (Exchange Act), which governs the should submit only information that security’s offering price, and so increase activities of underwriters, issuers, you wish to make available publicly. the offering proceeds; or may stabilize selling security holders, and others in FOR FURTHER INFORMATION CONTACT: the market price of an offered security connection with offerings of securities. in order to avoid a price decline during The proposed amendments are intended James Brigagliano, Assistant Director, Joan Collopy, Special Counsel, Elizabeth the sales period or in the immediate to prohibit certain activities by aftermarket, or to induce or attempt to underwriters and other distribution Sandoe, Special Counsel, Liza Orr, Special Counsel, Elizabeth Marino, induce prospective investors to buy in participants that can undermine the the aftermarket. integrity and fairness of the offering Attorney, or Denise Landers, Attorney Fellow, Office of Trading Practices and Although the general antifraud and process, particularly with respect to anti-manipulation provisions of the allocations of offered securities. The Processing, Division of Market Regulation, at (202) 942–0772, at the federal securities laws (e.g., Section proposal also seeks to enhance the 17(a) of the Securities Act, and Sections transparency of syndicate covering bids, Securities Exchange Commission, 450 Fifth Street, NW., Washington, DC 9(a), 10(b), and 15(c) of the Exchange which may affect the aftermarket price Act 6 and Rule 10b–5 under the and trading of an offered security, and 20549. prohibit the use of penalty bids. The SUPPLEMENTARY INFORMATION: The 21681, 21684 (‘‘Regulation M Concept Release’’) amendments also are intended to update Commission is requesting public (stating that a person contemplating or making a certain definitional and operational comment on proposed amendments to distribution has an obvious incentive to artificially influence the price of the securities in order to provisions in light of market Regulation M [17 CFR 242.100, 242.101, facilitate the distribution or increase its profitability developments since Regulation M’s 242.102, and 242.104], proposed rule and citing Bruns, Nordeman & Co., 40 SEC 652, 660 adoption. As a consequence of these 106 to the Regulation and Rule 17a–2 n.11 (1961)); Securities Exchange Act Release No. proposed amendments to Regulation M, [17 CFR 240.17a–2] under the Exchange 38067 (December 20, 1996), 62 FR 520 (January 3, we are also recommending Act. 1997) (‘‘Regulation M Adopting Release’’). 2 Securities Exchange Act Release No. 5194 (July corresponding changes to disclosure I. Introduction 5, 1955), 20 FR 5075. rules under the Securities Act of 1933 3 Regulation M replaced former Rules 10b–6, 10b– (‘‘Securities Act’’) as well as changes to Manipulation interferes with the 6A, 10b–7, 10b–8, and 10b–21. See Regulation M certain recordkeeping rules under the securities markets’ fundamental Adopting Release, 62 FR at 520. Rules 101, 102, and Exchange Act. function as an independent pricing 103 of Regulation M apply to distributions of mechanism and undermines the securities, defined as an offering of securities, DATES: Comments should be received on whether or not subject to registration under the markets’ integrity and fairness. Under or before February 15, 2005. Securities Act that are distinguished from ordinary the securities laws, Congress granted the trading by the magnitude of the offering and the ADDRESSES: Comments may be Commission broad authority to combat presence of special selling efforts and selling submitted by any of the following manipulative conduct. The methods. Rule 104 of Regulation M applies to methods: offerings of securities, which generally Commission, in turn, has recognized encompasses all methods of offering and selling Electronic Comments that special opportunities and securities to investors. Regulation M Adopting Release, 62 FR at 535, n. 116. Rule 105 applies to • incentives for manipulation arise in Use the Commission’s Internet securities offerings and has determined offerings registered under the Securities Act, except comment form (http://www.sec.gov/ offerings that are not firm commitment that certain offerings require specific underwritings. 17 CFR 242.100 through 105. rules/proposed.shtml); or 1 • regulation. Consequently, the 4 Under Regulation M, ‘‘distribution participant’’ Send an e-mail to rule- is defined as an underwriter, prospective [email protected]. Please include File 1 The primary focus of Regulation M, and its underwriter, broker, dealer, or other person who Number S7–41–04 on the subject line; predecessor Rule 10b–6, is (1) offerings that raise has agreed to participate or is participating in a or manipulative concerns, defined as distributions; (2) distribution. 17 CFR 242.100(b). • persons who are likely to engage in manipulative 5 See supra note 3 for the definition of Use the Federal eRulemaking Portal activity; and (3) the activities that likely could raise distribution. 17 CFR 242.100(b). (http://www.regulations.gov). Follow the or support the security’s price. Securities Exchange 6 15 U.S.C. 77q(a); 15 U.S.C. 78i(a), 78j(b), and instructions for submitting comments. Act Release No. 33924 (April 19, 1994), 59 FR 78(o)(c).
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Exchange Act 7) apply to all securities offerings (‘‘IPOs’’).10 Recent • Amend Rule 100’s definition of transactions, Regulation M takes a Commission 11 and SRO 12 actions and ‘‘restricted period’’ with respect to IPOs prophylactic approach and is focused private litigation 13 have addressed and to expressly reflect the on particular activities in connection certain misconduct in connection with Commission’s long-standing application with securities offerings.8 Rather than IPOs. of the definition in the context of addressing manipulation after the fact, On the basis of these developments, mergers, acquisitions, and exchange Regulation M seeks to prevent it by today we are proposing revisions to offers; generally precluding certain persons Regulation M and the addition of a new • Amend Rule 101’s ‘‘de minimis 14 from engaging in specified market rule. Our proposals would: exception’’ to require recordkeeping; activities. Also, unlike the more general • Amend Rules 100, 101, and 102 to 10 anti-manipulation provisions, See, e.g., NYSE/NASD IPO Advisory update the average daily trading volume Committee, Report and Recommendations (http:// (ADTV) value and public float value Regulation M does not require the www.nyse.com/pdfs/iporeport.pdf) (May 2003) (IPO Commission to prove in an enforcement Blue Ribbon Report); NASD Notice to Members 03– qualifying thresholds for purposes of the action that distribution participants 79 (December 2003) (adopting NASD Rule 2790 to ‘‘restricted period’’ definition and the prohibit sales of new issues to any account in ‘‘actively-traded’’ securities and have a manipulative intent or purpose. which a restricted member has a beneficial interest); As a prophylactic, anti-manipulation NASD Notice to Members 03–72 (November 2003) ‘‘actively-traded’’ reference securities measure, Regulation M is designed to (proposing additional amendments to NASD Rule exceptions; 2712 Governing Allocations and Distributions of • Amend Rule 104 to require prohibit activities that could artificially Shares in IPOs (SR–NASD–2003–140)); NASD influence the market for the offered disclosure of syndicate covering bids Notice to Members 97–34 (June 1997) (launching and to prohibit penalty bids; security, including, for example, initial public offering tracking system by The • Amend Rule 104(j)(2) to include supporting the offering price by creating Depository Trust Company to monitor flipping). 11 See, e.g., SEC v. J.P. Morgan Securities, Inc., reference securities in the exception for the exaggerated perception of scarcity of No. 03 Civ. 02028 (D.D.C. 2003), Complaint, transactions in securities eligible for the offered security or creating the (alleging violations of Regulation M); SEC v. resale under Rule 144A; and misleading appearance of active trading Robertson Stephens, Inc., Final Judgment of • Adopt new Rule 106 to expressly in the market for the security. Permanent Injunction and Other Relief Against Robertson Stephens, Inc., 03 Civ. 0027 (RL) (D.D.C. prohibit conditioning the award of Regulation M consists of six rules. 2003), Complaint ¶¶ 1, 5 (alleging violations of allocations of offered securities on the Rule 100 contains definitions of terms NASD Conduct Rules 2110 and 2330 and Section 17(a) of the Exchange Act and Rule 17a–3(a)(6) receipt of consideration in addition to under Regulation M. Rule 101 governs thereunder for improperly sharing customer profits the stated offering consideration. the activities of underwriters and other by allocating ‘‘hot’’ IPO shares to customers and As a consequence of these proposals, we persons participating in a distribution of receiving in return shares of customer profits via excessive commissions or markdowns); SEC v. are also recommending amendments to securities and their affiliated Credit Suisse First Boston Corp., No. 1:02 CV 00090, Rule 481 and Item 508 of Regulations S– purchasers.9 Rule 102 governs the 2002 WL 479836 (D.D.C. 2002), Complaint, ¶¶ 1, 6 K and S–B under the Securities Act activities of the issuer, selling security (alleging violations of NASD Conduct Rules 2110 concerning disclosure, and Rules 17a–2 holders and their affiliated purchasers. and 2330 and Section 17(a) under the Exchange Act and Rule 17a–3(a)(6) thereunder, for encouraging and 17a–4 with respect to Rule 103 describes the conditions for customers to channel profits from hot IPOs via recordkeeping. We solicit specific permissible ‘‘passive’’ market making excessive brokerage commissions); In the Matter of comment on our approach and the during the restricted period for a Michael J. Markowski, Securities Exchange Act specific proposals. We encourage Release No. 44086 (March 20, 2001) (finding a Rule distribution of a Nasdaq security. Rule 10b–6 violation when a broker-dealer firm commenters to present data on our 104 governs stabilization, syndicate instructed its brokers to solicit aftermarket orders proposals and any suggested alternative short covering activity, and penalty during the distribution). approaches. bids. Rule 105 prohibits covering short 12 See NASD Notice to Members 4–50 (July 2004) (announcing Bear Stearns & Co., Inc., Deutsche II. Discussion of Proposed Amendments sales with offered securities purchased Bank Securities Inc., and Morgan Stanley & Co., Inc. to Regulation M from an underwriter, broker, or dealer were censured for engaging in improper IPO participating in an offering. Since allocation practices and profit-sharing with A. Rule 100(b) Regulation M’s adoption in 1996, the customers by charging excessive commissions on listed agency trades within one day of allocating 1. ‘‘Restricted Period’’ for IPOs Commission has examined underwriting IPO shares to those customers). See also supra note practices and aftermarket activities. In 10, and accompanying text (detailing recent NASD The Commission is proposing to recent years, anti-manipulation actions to address the IPO allocation process). amend the definition of ‘‘restricted 13 regulation has been extensively and See In re Initial Public Offering Securities period’’ in Rule 100(b) with respect to Litigation, 241 F. Supp. 2d 281 (S.D.N.Y. 2003) 15 intensively scrutinized, with a (denying defendant underwriters’ motion to dismiss IPOs. Specifically, the Commission is particular focus on initial public in case involving multiple allocating underwriters charged with market manipulation for requiring No. 10 ‘‘Prohibited Solicitations and ‘Tie-in’ customers to engage in tie-in agreements and to pay Agreements for Aftermarket Purchases’’ (August 25, 7 17 CFR 240.10b–5. undisclosed excessive compensation in order to 2000) (Staff Legal Bulletin 10). Although the 8 See Regulation M Concept Release, 59 FR at receive allocations of IPO stock). See also In re aforementioned conduct would violate Regulation 21687 (noting purpose of the anti-manipulation Initial Public Offering Antitrust Litigation, 287 F. M or other provisions of the federal securities laws, rules is to limit the scope of market activity during Supp. 2d 497 (S.D.N.Y. 2003) (finding that investors or both, proposed Rule 106 would expressly securities offerings in order to prophylactically could not pursue antitrust claims against prohibit the full array of fraudulent and prevent manipulation). underwriters whom they alleged conspired to manipulative conduct related to allocations of 9 17 CFR 242.101. An affiliated purchaser inflate aftermarket prices under doctrine of implied offered shares. generally means a person acting, directly or immunity); Friedman v. Salomon Smith Barney, 15 17 CFR 242.100(b) states that restricted period indirectly, in concert with a distribution Inc., 313 F.3d 796, 801 (2nd Cir. 2002) (finding that means: (1) For any security with an ADTV value of participant, issuer or selling security holder in underwriters and brokers are immune from antitrust $100,000 or more of an issuer whose common connection with the acquisition or distribution of liability for price stabilization practices in the equity securities have a public float value of $25 any covered security or an affiliate of a distribution aftermarket since it is the exclusive jurisdiction of million or more, the period beginning on the later participant, issuer or selling security holder, that the Securities and Exchange Commission). of one business day prior to the determination of directly or indirectly, controls the purchases of any 14 The Commission staff previously addressed the offering price or such time that a person covered security by a distribution participant, manipulative conduct related to tie-in arrangements becomes a distribution participant, and ending issuer, or selling security holder, whose purchases and solicitations for aftermarket purchases of an upon such person’s completion of participation in are controlled by or under common control with offered security in violation of Regulation M. See the distribution; and (2) For all other securities, the any such person. See 17 CFR 242.100(b). Division of Market Regulation: Staff Legal Bulletin Continued
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proposing new paragraph (4) to the float 19 of the issuer.20 If a covered bids, purchases, or attempts to induce definition to provide that the restricted security has an ADTV value of $100,000 bids or purchases on the market price period for an IPO would extend from or more and a public float value of $25 for a security may dissipate. It therefore the earlier of: (1) The period beginning million or more, then the restricted allows other market participants to at the time an issuer reaches an period begins on the later of one observe trading in the offered security understanding with a broker-dealer that business day prior to the determination unaffected by the activity of persons is to act as an underwriter, or such time of the offering price, or such time that with an incentive to facilitate the that a person becomes a distribution a person becomes a distribution distribution. With a one or five-day participant; or (2) if there is no participant (‘‘one-day security’’).21 If a restricted period, investors and market underwriter, the period beginning at the covered security’s ADTV and public participants should observe prices in time the registration statement is filed float values are less than $100,000 and the offered security that result from the with the Commission or other offering $25 million respectively, then the natural forces of supply and demand. document is first circulated to potential restricted period commences on the A recent enforcement case alleged investors, or such time that a person later of five business days prior to the that a broker-dealer, prior to the pricing becomes a distribution participant, and determination of the offering price or of IPOs, induced and attempted to would conclude when the distribution such time that a person becomes a induce investors to make aftermarket is completed.16 distribution participant (‘‘five-day bids or purchases.26 Inducements and As defined in Rule 100(b), ‘‘restricted security’’).22 The restricted period attempts to induce aftermarket bids or period’’ is the time period during which generally ends, for all securities, upon purchases by distribution participants covered persons must refrain from such person’s completion of in order to facilitate a securities directly or indirectly bidding for, participation in the distribution.23 distribution interfere with the securities purchasing, or attempting to induce any However, distribution participants and markets’ function as an independent person from bidding for, or purchasing their affiliated purchasers are not pricing mechanism and undermine the a covered security.17 The length of the subject to a restricted period for a integrity of the capital raising process.27 restricted period is based on the covered security that has an ADTV The activity often creates the liquidity of a security’s trading market, value of at least $1 million and a public exaggerated perception to investors of specifically the value of the average float value of at least $150 million scarcity of IPO stock and can affect the daily trading volume (‘‘ADTV’’)18 of the (‘‘actively-traded securities’’).24 Issuers, pricing of the offering. security and the value of the public selling security holders, and their The restricted period definition affiliated purchasers are not subject to a references trading market information, period beginning on the later of five business days restricted period with respect to i.e., ADTV and public float, and prior to the determination of the offering price or reference securities that have an ADTV provides two restricted periods based on such time that a person becomes a distribution these thresholds. Paragraph (2) of the participant, and ending upon such person’s value of at least $1 million and a public completion of participation in the distribution. (3) float value of at least $150 million.25 definition provides that ‘‘for all other In the case of a distribution involving a merger, The restricted period provides a securities’’ that do not satisfy the ADTV acquisition, or exchange offer, the period beginning defined period of time during which the and public float levels in paragraph (1) on the day proxy solicitation or offering materials of the definition, the restricted period is are first disseminated to security holders, and effects of a distribution participant’s ending upon the completion of the distribution. five days. Currently, the absence of a 16 A distribution is generally considered 19 Rule100(b) provides that ‘‘public float value trading market for IPOs has meant that completed when the securities in the distribution shall be determined in the manner set forth on the the five-day restricted period applies to have been distributed or acquired for investment, front page of Form 10–K even if the issuer of such IPOs. e.g., when an underwriter’s participation has been securities is not required to file Form 10–K ***.’’ In the case of IPOs, however, the distributed and any stabilization arrangements and 17 CFR 242.100(b). trading restrictions in connection with the market influences underlying the one 20 However, if the distribution involves a distribution have been terminated. 17 CFR corporate action, current subparagraph (3) of the and five-day restricted periods do not 242.100(b). Provided, however, that an restricted period governs the commencement of the apply. There is no trading market that underwriter’s participation will not be deemed to restricted period. This is the day that proxy have been completed if a syndicate overallotment would provide an independent pricing solicitation or offering materials are mailed. option is exercised in an amount that exceeds the mechanism for prospective investors to Additionally, current paragraphs (1) and (2) of the net syndicate short position at the time of such restricted period definition would apply to any evaluate the IPO price set by exercise. Id. For a selling group member that is not valuation or election period in connection with the underwriters. Therefore, any part of the underwriting syndicate, its participation corporate action. is completed when the selling group member has inducement activity by underwriters 21 sold its entire allotment. 17 CFR 242.100(b) definition of restricted and other distribution participants can 17 A covered security is defined as ‘‘any security period, subparagraph (1). have long-lasting effects. 22 that is the subject of the distribution, or any 17 CFR 242.100(b) definition of restricted Attempts to induce aftermarket bids period, subparagraph (2). reference security.’’ A reference security is defined or purchases that occur earlier than five as a ‘‘security into which a security that is the 23 See supra note 15. subject of a distribution (‘subject security’) may be 24 17 CFR 242.101(c)(1) (providing an exception days before IPO pricing can affect the converted, exchanged, or exercised or which, under for actively-traded covered securities if the pricing of an offering. Thus, the the terms of the subject security, may in whole or distribution participant or its affiliated purchasers Commission believes that current Rule in significant part determine the value of the subject did not issue the security). We note, however, that 100’s application to IPOs that results in security. 17 CFR 242.100(b). there is no actively-traded securities exception for a restricted period that commences five 18 ADTV is defined as the worldwide average IPOs because they have no trading market. daily trading volume during the two full calendar 25 17 CFR 242.102(d)(1) (providing an exception months immediately preceding, or any 60 for actively-traded reference securities if the issuer 26 See SEC v. J.P. Morgan Securities, Inc., supra consecutive calendar days ending within the 10 or its affiliated purchasers did not issue the note 11. calendar days preceding, the filing of the reference security). Rule 102 did not except all 27 Regulation M’s proscription of attempts to registration statement; or, if there is no registration actively-traded reference securities, because the induce bids and purchases are not intended to statement or if the distribution involves the sale of Commission determined that issuers and selling interfere with legitimate book-building. The securities on a delayed basis pursuant to 230.415 security holders have a high stake in the proceeds determination as to whether an activity or of this chapter, two full calendar months of an offering (and thus, an incentive to communication constitutes legitimate book- immediately preceding, or any consecutive 60 manipulate), and so, should not be able to trade in building or an attempt to induce a bid or purchase calendar days ending within the 10 calendar days their securities, whether or not they are actively- in violation of Regulation M depends on the preceding, the determination of the offering price. traded. Regulation M Adopting Release, 62 FR at particular facts and circumstances surrounding 17 CFR 242.100(b). 531. such activity or communication.
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days prior to pricing an IPO is including IPOs that have an acquisitions, and exchange offers refers inadequate to address potentially underwriter? Please provide specific to ‘‘the period beginning on the day manipulative conduct because attempts reasons and information to support an proxy solicitation or offering materials to induce aftermarket bids and alternative recommendation. Please are first disseminated to security purchases are inappropriate at any time provide empirical data, when possible, holders * * *’’ but the rule text itself prior to the pricing and distribution of and cite to economic studies, if any, to does not explicitly refer to valuation an IPO. support any alternative approaches. and election periods.33 In order to combat manipulative Notwithstanding the long-standing abuses in connection with IPOs, the 2. Amendments to Rule 100(b)— interpretation, the staff occasionally ‘‘Restricted Period’’ for Corporate Commission is proposing new 29 receives inquiries about restricted paragraph (4) to the definition of Actions periods concerning valuation and restricted period to specify that in the The Commission has a long-standing election periods in corporate actions. case of an IPO, the restricted period interpretation under both Regulation M Therefore, we believe that expressly generally begins the earlier of: when the and its predecessor, Rule 10b–6, that the stating this interpretation in the rule issuer reaches an understanding with restricted period for mergers, would be beneficial. Accordingly, we the broker-dealer that is to act as its acquisitions, and exchange offers propose to amend the definition of the underwriter, or such time that a person includes valuation and election restricted period in Rule 100(b) to becomes a distribution participant; or if periods.30 Valuation periods refer to include valuation and election periods there is no underwriter, when the time periods when the offered security’s and to add definitions for these terms. registration statement is filed with the market price is a factor in determining Q. We seek specific comment Commission or other offering document the consideration paid in a corporate concerning the proposal to incorporate is first circulated to potential investors, action.31 Election periods refer to time the interpretation concerning election or such time that a person becomes a periods when shareholders have the and valuation periods into the text of distribution participant.28 Additionally, right to elect among various forms of the restricted period definition. consideration.32 These periods have the Commission is proposing to define B. Rule 100 Restricted Period Definition been considered by the Commission to IPO in Rule 100(b) to mean an issuer’s and Rules 101 and 102 Actively-Traded be included in the restricted period first offering of a security to the public Security Exception: ADTV and Public because they are deemed part of the in the United States, and if prior to the Float Value Thresholds offering the issuer’s equity securities do distribution, and valuation and election not have a public float value, and the periods are price-sensitive times during As discussed earlier, Rules 101 and IPO would be an issuer’s first offering of which the incentive for interested 102 of Regulation M prohibit certain an equity security to the public in the persons to manipulate is high. persons from making bids or purchases United States. We propose to use this Currently, the Rule 100(b) definition of during restricted periods, as defined in definition of IPO so that if an issuer’s restricted period for mergers, Rule 100(b). The applicable restricted first offering of a security in the United period begins either one or five days States is debt, then both that debt 29 Restricted period means in the case of a before determining the offering price (or distribution involving a merger, acquisition, or offering and the issuer’s first offering of other applicable event) and is exchange offer, the period beginning on the day determined on the security’s ADTV an equity security in the United States proxy solicitation or offering materials are first disseminated to security holders, and ending upon value and the issuer’s public float would fall within this proposed 34 definition of IPO. However, if an offered the completion of the distribution. 17 CFR value. Securities that have an ADTV 242.100(b). value of at least $100,000 of an issuer equity security already has a trading 30 See Regulation M Adopting Release, 62 FR at market either domestically or abroad for whose common equity securities have a 527 (stating that consistent with interpretations public float value of at least $25 million which ADTV and public float values under Rule 10b–6, a restricted period under have a restricted period that commences may be calculated, then the equity Regulation M would commence one or five days before the commencement of a valuation period, one day prior to the day of the pricing offering would not be an IPO, and either i.e., a period where the market price of the offered of the offering and for securities falling a one or five-day restricted period security would be a factor for determining the below those thresholds a five-day would apply based on the ADTV and consideration paid in a merger, acquisition or restricted period applies.35 The public float values. We also note that exchange offer, and continue for the duration of such period), citing Securities Exchange Act Release Commission additionally determined to the actively-traded security or reference No. 19565 (March 14, 1983), 48 FR 10628, 10638 except actively-traded securities from security exception would not apply to (stating that ‘‘any period during which the market the provisions of Rule 101, when such IPOs. price of the offered security was a factor in securities are not issued by the Q. Is there a different restricted period determining the consideration to be paid pursuant to the merger (‘valuation period’) * * * the issuer distribution participant or an affiliate that should apply to IPOs that would was required to cease bidding for or purchasing the thereof.36 Similarly, actively-traded more appropriately restrict potentially security five business days prior to and for the reference securities are excepted from manipulative activity? Should the duration of the valuation period. A similar the provisions of Rule 102 when such restricted period for IPOs begin earlier restriction was applied to any period during which the target company shareholders had the right to securities are not issued by the issuer, than proposed? Should the restricted elect among various forms of consideration offered or any affiliate of the issuer, of the period begin with the filing of the in connection with [a] merger (‘election period’).’’). security in distribution.37 Actively- registration statement (or with the first See also Division of Market Regulation Staff Legal Bulletin No. 9: Frequently Asked Questions About circulation of an offering document to Regulation M (revised April 12, 2002) available at 33 17 CFR 242.100(b). potential investors) for all IPOs, http://www.sec.gov/interps/legal/mrslb9.htm 34 See supra Section II.A. for a discussion of (stating ‘‘the restricted period includes the restricted periods and corresponding ADTV and 28 An underwriter is defined as a person who has valuation period as well. For instance, if the public float value thresholds. agreed with an issuer or selling security holder: (1) valuation period occurs outside of the proxy 35 17 CFR 242.100(b). To purchase securities for distribution; or (2) to solicitation period, an additional restricted period 36 17 CFR 242.101(c)(1). Cf., Rule 100(b) distribute securities for or on behalf of such issuer would commence one or five business days prior definition of restricted period. 17 CFR 242.100(b). or selling security holder; or (3) to manage or to the commencement of the valuation period and See also supra note 24. supervise a distribution of securities for or on continue until the valuation period ends.’’). 37 17 CFR 242.102(d)(1). A reference security is a behalf of such issuer or selling security holder. 17 31 See supra note 30. security into which a security that is the subject of CFR 242.100(b). 32 See supra note 30. Continued
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traded securities and reference participants and issuers to dissipate.44 thresholds for the restricted period and securities are those with an ADTV value Similarly, the Commission believed that actively-traded securities and reference of at least $1 million and are issued by the threshold values for the actively- securities current, the Commission is an issuer whose common equity traded security exception from Rule 101 proposing to increase the ADTV and securities have a public float value of at and actively-traded reference security public float value thresholds to account least $150 million.38 In effect, these exception from Rule 102 would except for the decline in the value of the dollar actively-traded securities and reference securities as to which the potential for that has occurred since 1996 (i.e., adjust securities have no restricted period.39 a successful manipulation is relatively the values by the change in the As discussed below, we now propose to limited.45 The Commission is proposing Consumer Price Index (‘‘CPI’’)). Between increase the thresholds for the to increase these threshold levels for the 1996 and 2004, the CPI, a general applicable restricted periods for the restricted period and actively-traded measure for the change in the value of actively-traded securities and actively- security and reference security the dollar, rose approximately 20 traded reference securities exceptions in exceptions to adjust for the effect of percent.47 The adjustment of the order to adjust for inflation since the inflation. Since Regulation M was thresholds to reflect the current dollar time of Regulation M’s adoption in adopted in 1996, the value of the dollar value should simply reset the thresholds 1996. has decreased due to inflation and has to the level of restrictiveness intended In excepting actively-traded securities resulted in the ADTV and public float when Regulation M was adopted. As from Rule 101 and actively-traded value thresholds becoming less such, the adjusted thresholds should reference securities from Rule 102, the restrictive than when Regulation M was capture approximately the same type of Commission believed that it was initially adopted. As a result, more issuers, with similar market liquidity reasonable to rely on market issuers’ securities would now qualify for and investment community following, mechanisms to curb the manipulative the restricted periods and for the as originally contemplated to be activity addressed by Regulation M.40 In actively-traded security exceptions and excepted when Regulation M was particular, the Commission reasoned the lower thresholds may except from adopted.48 Thus adjusting the that as the value of trading volume Regulation M’s prohibitions securities thresholds would express in today’s increased, it became less likely that a that may be more susceptible to dollar value terms the same type of person could, cost-effectively, manipulation than we contemplated at issuer meant to be excepted in 1996. manipulate the price of the security.41 adoption.46 Part of this increase in the We propose to amend the Rule 100(b) Also, the Commission considered that number of actively-traded securities and definition of restricted period, the Rule actively-traded securities are followed securities qualifying for a one- or five- 101(c)(1) exception for actively-traded widely by the investment community, day restricted period, is due to securities, and the Rule 102(d)(1) and any aberrations in the price of an inflation’s effect on the value of the exception for actively-traded reference actively-traded stock would be observed dollar. securities to reflect an adjustment to the by the investment community and Because ADTV and public float value ADTV and public float values for the corrected.42 In addition, actively-traded are measured in dollars, the general change in CPI. Specifically we propose securities are listed and traded on change in the value of the dollar since to adjust the one-day restricted period to exchanges or other organized markets, Regulation M’s adoption has eroded the require at least $120,000 for ADTV and so are relatively transparent and restrictiveness of the Regulation’s value and $30 million for public float subject to surveillance.43 threshold values. We believe that the value, and to adjust the actively-traded The restricted period threshold levels level of restrictiveness we employed in security and reference security were intended to apply only to those 1996 for actively-traded securities thresholds to require at least $1.2 securities where the potential for remains an appropriate threshold, and million for ADTV value and $180 manipulation was relatively limited and therefore, in order to make the million for public float value, which which would allow the effects of the reflects the change in the CPI Index market activities of distribution 44 See discussion supra Section II.A. from 1996 to 2004. 45 Regulation M Adopting Release, 62 FR at 527. Q. Should the current thresholds for a distribution (‘‘subject security’’) may be The Commission observed that the exception would actively-traded securities, as well as the not compromise investor protection because the converted, exchanged, or exercised or which, under thresholds for one and five-day the terms of the subject security, may in whole or general antifraud and anti-manipulation provisions in significant part determine the value of the subject would continue to apply to offerings of actively- restricted periods, be adjusted by a security. 17 CFR 242.100(b). See also supra note 25. traded securities. Thus, distribution participants factor other than CPI? If so, what factor (and their affiliated purchasers) would continue to 38 17 CFR 242.100(b). When Regulation M was should be used? Should the be prohibited from influencing the price of such adopted, the Commission believed the two-part Commission consider adjusting these ADTV and public float standard appropriately securities to facilitate the distribution. Securities distinguished which securities were more difficult Exchange Act Release No. 37094 (April 11, 1996), threshold values for this rise in the to manipulate. The Commission reasoned that the 61 FR 17108, 17112 (April 18, 1996) (‘‘Regulation value of the market since Regulation M use of a trading volume standard alone would M Proposing Release’’). was adopted in 1996, for example, by 46 When we adopted Regulation M, the permit securities experiencing an unusual short- the change in the S&P 500 or Dow Jones term volume increase in trading to be excepted from Commission estimated (based on 1995 data) a total the restrictions of Rules 101 and 102. To avoid this of 4,255 securities would either have a one- or five- Industrial Average? Commenters should result, the Commission added a public float day restricted period, with 2,693 one-day securities provide specific reasons and data in component to the test, so that securities with an and 1,562 five-day securities respectively. support of their statements and any unusual increase in trading volume, but with a Additionally, 1,901 securities would qualify for the relatively small public float value, would be subject actively-traded security exception. Regulation M 47 The change in CPI is the percentage change in to the restricted periods under Rules 101 and 102. Adopting Release, 62 FR at 525, n. 37 (based on an Urban CPI measured from July 1996 to July 2004, Regulation M Adopting Release, 62 FR at 527. analysis of NYSE, Amex and Nasdaq-listed securities). Today, based on 2003 data, based on calculations performed by OEA. 39 It should be noted, however, that actively- approximately 4,667 securities would either have a 48 Adjusting the ADTV and public float value traded securities and reference securities are not one- or five-day restricted period, with 2,035 thresholds upwards for actively-traded securities by excepted from Rule 104 of Regulation M. 17 CFR securities one-day securities and 2,632 securities 20% would yield 2,353 issuers, or approximately 242.104. five-day securities and 2,352 securities would 31% of all issuers would qualify as actively-traded 40 Regulation M Adopting Release, 62 FR at 527. qualify for the actively-traded security exception. securities. Based on calculations performed by 41 Id. These estimates are based on computations OEA, in 1996 approximately 2,338 issuers were 42 Id. performed by the Office of Economic Analysis deemed actively-traded securities, which 43 Id. (‘‘OEA’’), July 8, 2004, using the CRSP database. represented 27% of all issuers.
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alternative measure for adjusting the restricted period. However, other firms Commission exclusive regulatory ADTV and public float values suggested. similarly relying upon the exception authority over price stabilization Q. Do ADTV and public float values may not inform the Commission’s staff practices (i.e., syndicate covering provide an appropriate measure on of that activity. Consequently, the transactions and penalty bids) in which to base the actively-traded Commission cannot know with a high Section 9(a)(6) of the Exchange Act.54 exception? That is, do these trading degree of certainty how often the ‘‘In exercising its authority, the volume and public float criteria exception is used, whether certain firms Commission [through Regulation M and adequately identify a security’s liquidity repeatedly rely on it, or whether firms its predecessor Rule 10b-6] has focused and depth? Are these criteria sufficient have adequate and effective procedures on the market activities of persons to identify securities that are more qualifying them for the exception. participating in a securities offering, and difficult to manipulate? Should other Thus, the Commission is proposing to determined that securities offerings criteria in addition to, or in lieu of, modify Rule 101(b)(7) to require firms to present special opportunities and ADTV and public float value be used? create a separate record of each bid or incentives for manipulation that require If so, please provide specific comment purchase that is made in reliance on the specific regulatory attention.’’55 The on other criteria and reasons to support de minimis exception, including among objective of Regulation M is to preclude your recommendation. other things, that brokers and dealers manipulative conduct by persons with Q. Are the current actively-traded specify the subject security, the day the an interest in the outcome of an offering securities exception and one and five- restricted period commenced, the and activity that undermines the day restricted periods under Regulation ADTV, and the bids or purchases that integrity of the markets by interfering M set at appropriate threshold levels? otherwise would violate Regulation M, with the market’s function as an That is, do the current ADTV value and including time, price, quantity, and independent pricing mechanism. public float value thresholds for market. Brokers and dealers would be Security offerings are particularly actively-traded securities and for one required to maintain these records susceptible to manipulative abuse and five-day restricted periods pursuant to proposed Exchange Act because persons, such as underwriters, adequately balance the goal of Rule 17a-4(b)(13). We believe this who stand to profit from such offerings maintaining market liquidity with the requirement would more easily allow have special incentives to manipulate in mandate to protect investors from Commission and SRO examiners to order to facilitate the offerings. manipulation? If not, what threshold uncover patterns of abuse or policies Syndicate covering transactions occur levels would? Commenters should and procedures that are not reasonably when the managing underwriter places provide specific reasons and data in designed to achieve compliance with a bid or effects a purchase on behalf of support of their statements and any the rule. the underwriting syndicate in order to alternative thresholds suggested. Q. Is the proposed amendment an reduce a syndicate short position effective and efficient manner in which C. Rule 101(b)(7)—De Minimis created in connection with the to guard against repeated reliance on the 56 Exception offering. Penalty bids are a means by exception and promote effective which the managing underwriter may The de minimis exception in Rule compliance policies and procedures? impose a financial penalty on syndicate 101(b)(7) is intended to excuse from Please provide any alternatives. members whose customers sell offering Rule 101’s trading prohibitions small, Q. Are there other aspects of the de shares in the immediate aftermarket.57 inadvertent transactions that would not minimis exception that the Commission Syndicate covering transactions and impact the market.49 It excepts should consider changing? For example, penalty bids may have the effect of purchases and unaccepted bids during is the 2% ADTV threshold appropriate stabilizing the market price in the restricted period that total less than or should it be raised or lowered? Please connection with an offering, by 2% of the distributed security’s ADTV provide data supporting your comment. preventing or retarding a decline in the only if the person making the bid or D. Rule 104—Syndicate Covering and market price of the offered security once purchase maintains and enforces 58 Penalty Bids aftermarket trading commences. written policies and procedures reasonably designed to achieve We propose to amend Rule 104 of 54 See Friedman v. Salomon Smith Barney, Inc., compliance with Regulation M. Regulation M to require any person 2000 U.S. Dist. LEXIS 17785 (S.D.N.Y. 2000), aff’d Moreover, a firm is expected to ‘‘review communicating a bid that is for the 313 F.3d 796 (2d Cir. N.Y. 2002) (dismissing purpose of effecting a syndicate plaintiffs’ claims on the basis that the defendants’ its policies and procedures and modify use of penalty bids and other price stabilization them as appropriate’’ in order to qualify covering transaction (‘‘syndicate practices used to combat flipping were subject to for the exception.50 Repeated reliance covering bids’’) to identify or designate regulation by the Commission under Section 9(a)(6) on this exception by distribution the bid as such wherever it is of the Exchange Act and, therefore, immune from anti-trust attack). participants or their affiliated persons communicated and to prohibit the use 55 52 Regulation M Adopting Release, 62 FR at 520. raises concerns about whether the of penalty bids. ‘‘Congress granted the 56 A syndicate covering transaction is the placing transactions were ‘‘inadvertent’’ and the Commission broad rulemaking authority of any bid or the effecting of any purchase on behalf adequacy and effectiveness of a firm’s to combat manipulative abuses in of the sole distributor or the underwriting syndicate compliance policies and procedures.51 whatever form they might take.’’53 or group to reduce a short position created in Congress also delegated to the connection with the offering. 17 CFR 242.100(b). From time to time, firms relying on 57 A penalty bid is an arrangement that permits this exception have informed the the managing underwriter to reclaim a selling Commission’s staff of an inadvertent bid 52 17 CFR 242.104. Rule 104 permits underwriters concession from a syndicate member in connection or purchase that occurred during the and syndicate members, in order to facilitate an with an offering when the securities originally sold offering, to conduct stabilizing and other by the syndicate member are purchased in aftermarket activities in compliance with the Rule’s syndicate covering transactions. 17 CFR 242.100(b). 49 17 CFR 242.101(b)(7). conditions. Unlike Rules 101 and 102, which apply 58 ‘‘Stabilizing’’ means ‘‘the placing of any bid, or 50 Regulation M Adopting Release, 62 FR at 530. only to distributions, Rule 104 is broader in that it the effecting of any purchase, for the purpose of 51 Regulation M Adopting Release, 62 FR at 530 applies to security offerings. See Regulation M pegging, fixing, or maintaining the price of a (stating that ‘‘[t]he Commission notes that repeated Adopting Release, 62 FR at 535, n. 116 and supra security.’’ 17 CFR 242.100(b). When adopting reliance on the exception would raise questions note 3. Regulation M, the Commission noted that about the adequacy and effectiveness of a firm’s 53 See Regulation M Adopting Release, 62 FR at ‘‘syndicate short covering transactions and the procedures’’). 520. Continued
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To enhance the transparency of the syndicate agreement allows the in the Plan of Distribution or syndicate covering transactions, we are managing underwriter to ‘‘oversell’’ the Underwriting section of the prospectus, proposing to amend paragraph (h)(2) of offering, i.e., establish a short position if an underwriter intends to engage in Rule 104 to require identification or beyond the number of shares to which any of these activities.69 Generally, this designation of syndicate covering bids, the underwriting commitment relates. disclosure is included in prospectuses analagous to the identification of The underwriting agreement with the for firm commitment offerings, stabilizing bids.59 Specifically, the issuer often provides for an regardless of whether the underwriters proposal would require a managing ‘‘overallotment option’’ whereby the intend to or, in fact, stabilize the underwriter or other person syndicate can purchase additional offering.70 communicating a bid that is for the shares from the issuer or selling 2. Current Syndicate Practices purpose of effecting a syndicate shareholders in order to cover its short covering transaction to identify or position.65 To the extent that the Underwriters assume a large measure designate the bid as such wherever it is syndicate short position is in excess of of the risk that an offering may not be communicated.60 The proposal also the overallotment option, the syndicate successful, and so have manipulative would prohibit the use of penalty bids, is said to have taken an ‘‘uncovered’’ incentives to varying degrees as discussed below. short position.66 The syndicate short throughout the offering process. The 1. Overview of the Current Rule 104 position, up to the amount of the point in time when underwriters no overallotment option, may be covered 61 longer have manipulative incentive or Rule 104 governs stabilization, by exercising the option or by 62 purpose to facilitate an offering cannot syndicate covering transactions, and purchasing shares in the market once 71 63 be identified with precision. But the penalty bids. For stabilizing bids, the secondary trading begins. Shares Commission has recognized that these rule currently requires prior notification purchased in the market by or on behalf incentives can continue into the to the market on which such bids are of the syndicate must be used to reduce aftermarket when syndicate covering effected and to the person with whom the size of the syndicate short position. transactions and penalty bids occur.72 the bid is entered, but for syndicate Therefore, the overallotment option may covering transactions and penalty bids, The creation of a syndicate short be exercised only to the extent required position and the subsequent purchasing only requires prior notification to the to cover the ‘‘net’’ short position.67 relevant SRO.64 In the typical offering, activity to cover the position can impact Shares needed to cover the uncovered the offering and the aftermarket price. short position must be purchased in the The potential ‘‘buying power’’ of the imposition of penalty bids by underwriters are 68 activities that can facilitate an offering in a manner market. short position can allow the syndicate to similar to stabilization.’’ Regulation M Adopting Currently, issuers are required to price the offering more aggressively Release, 62 FR at 537. Before Rules 10b-6 and 10b- inform investors that the syndicate may because its syndicate short covering can 7 were adopted, the Commission considered effect stabilizing and syndicate covering syndicate covering transactions to be a means of support the aftermarket at prices around facilitating the distribution by supporting the transactions, or impose penalty bids, in or above the offering price, thereby market price of an offered security. Exchange Act connection with the securities offering validating the offering price. Purchasers Release No. 3506 (November 16, 1943), 11 FR 10965 by providing a general description of in the offering also may conclude that (describing the conditions under which syndicate covering transactions may facilitate an offering). possible stabilization, syndicate the trading activity in the aftermarket Stabilization, and syndicate covering transactions, covering transactions and penalty bids validates the offering price, and are permitted only to prevent or retard a decline in therefore may be more inclined to retain the market price, and may not be used to raise the 65 ‘‘Underwriters frequently receive an the shares purchased in the offering market price, or create a false or misleading overallotment option (‘‘Green Shoe’’), which is the appearance of either active trading in a security or right, but not the obligation, to purchase securities with respect to the trading market for the offered from the issuer in addition to those initially 69 Items 508(l) and 508(j) of Regulations S–K and security. Id. See also Proposed Rules: Stabilizing to underwritten by the syndicate, which may S–B [17 CFR 229.508(l) and 228.508(j)]. Securities Facilitate a Distribution, Securities Exchange Act constitute up to 15% of the initial underwritten Act Rule 481(d) [17 CFR 230.481(d)] requires this Release No. 28732 (January 3, 1991), 56 FR 814. amount. Because the overallotment option may be disclosure in registration statements prepared on a 59 17 CFR 242.104(h)(1). Consistent with the insufficient to cover the entire syndicate short form available solely to investment companies current disclosure requirement for stabilizing bids, position, that portion in excess of the overallotment registered under the Investment Company Act of the NASD requires market makers intending to option must be covered through purchases in the 1940 or in a Securities Act registration statement for initiate stabilizing bids to provide it with prior secondary market.’’ Regulation M Proposing a company that has elected to be regulated as a notice. See NASD Rule 4614. Stabilizing bids are Release, 61 FR at 17124, n. 86. business development company under Sections 55 then identified by a symbol on the Nasdaq 66 The creation of an uncovered short position in through 65 of the Investment Company Act [15 quotation display. Id. In this way, the person connection with an offering is permissible activity U.S.C. 80a–54—80a–64]. engaged in stabilization satisfies the requirement to that facilitates the offering, and is different from the 70 The Division of Corporation Finance has issued inform the market and the person to whom the bid delivery obligations related to ‘‘uncovered short interpretive guidance indicating that the Staff will is made of the stabilizing purpose of the bid by selling’’ of securities in the secondary market that issue comments if the disclosure regarding notifying the NASD. See Regulation M Adopting is discussed in the Regulation SHO Adopting applicable short sale transaction does not address Release, 62 FR at 537. On the exchanges, Release. See Securities Exchange Act Release No. the following material points: (1) The potential for underwriters must notify the exchange and provide 50103 (July 28, 2004), 69 FR 48008 (August 6, underwriter short sales in connection with the disclosure to the recipient of the bid, i.e., the 2004). offering; (2) a description of short sales and specialist. See NYSE Rule 392; Regulation M 67 If an underwriter were to exercise the uncovered short sales; (3) an explanation of when Adopting Release, 62 FR at 537. Overallotment Option in an amount exceeding the an uncovered short sale position will be created; (4) 60 Rule 104(h)(2) would continue to require prior net syndicate short position, under Regulation M how underwriters close out covered short sales and notice to the self-regulatory organization with direct and former Rule 10b–6, an underwriter’s uncovered short sale positions; (5) how authority over the principal market in the United participation in the distribution would not be underwriters determine the method for closing out States for the security for which the syndicate deemed completed and purchases made prior to the covered short sale positions; and (6) the potential covering transaction is effected. 17 CFR exercise of the option may violate Regulation M. effects of underwriters’ short sales and transactions 242.104(h)(2). See Regulation M Adopting Release, 62 FR at 522– to cover those short sales. See ‘‘Current Issues and 61 See supra note 58. 23; Securities Exchange Act Release No. 19565 Rulemaking Projects,’’ Nov. 14, 2000, Section 62 See supra note 56. (March 4, 1983), 48 FR 10628, 10640. Underwriters VIII.A.3.c, at http://www.sec.gov. The guidance 63 See supra note 57. and issuers also would have to consider any includes examples of language that issuers may use 64 17 CFR 242.104(h)(1)–(2). For a discussion of prospectus disclosure issues this may raise. See to provide the required disclosure. Regulation M’s notice requirement for stabilizing infra note 69. 71 See Regulation M Proposing Release, 61 FR at bids, see Regulation M Adopting Release, 62 FR at 68 See generally, Loss, L and Seligman, J., 17124. 537. Securities Regulation, 3d Section 2–A–2 (2004). 72 Id. at 17124–17125.
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rather than sell the shares to realize a transactions may be preferred by be used to facilitate an offering by gain or avoid a loss. managing underwriters primarily supporting the market price of the When we adopted Regulation M, we because they are not subject to the price offered security, Rule 104 currently specifically recognized that and other conditions that apply to regulates these activities differently. underwriters frequently engage in stabilization under Rule 104, and in While both stabilization and syndicate syndicate covering transactions, and particular the contemporaneous market covering transactions support the price noted that these transactions can disclosure of the bidding and in the aftermarket of an offered security, facilitate an offering in a manner similar purchasing activity.78 However, the lack they do operate differently. Stabilizing to stabilization.73 Currently, Rule 104 of transparency of syndicate covering bids and purchases are conducted only addresses the risk that stabilization will transactions has the potential to create by the managing underwriter who create a false or misleading appearance a false or misleading appearance with places bids at prices prescribed by Rule with respect to the trading market for respect to the trading market for the 104 to peg, fix, or stabilize the market the offered security by imposing pricing, offered security. Because syndicate price for the security. In contrast, the disclosure, and other conditions on this covering transactions are not required to managing underwriter places syndicate activity.74 Among other things, the be disclosed to the market, investors short covering bids in the market, Commission considered the (i.e., those who purchased in the typically when the security is trading contemporaneous disclosure that offering, as well as those who purchased below the offering price, in order to stabilization is occurring to be beneficial in the aftermarket) are not informed deliver securities sold short in the to market participants, because this about when the syndicate is actually offering, i.e., cover the syndicate short information is important to their making syndicate covering purchases in position. This bidding and purchasing decisions to buy or sell the security. the market. As a result, investors have activity can also support the market Syndicate covering transactions are no way of knowing whether, and to price for the securities. Therefore, to regulated quite differently under Rule what extent, the market price of the address the disparate treatment of 104, in large measure because the offered security may be supported by activities that similarly impact the Commission had insufficient syndicate covering activity. Of note, aftermarket trading of an offered information about syndicate covering once the managing underwriter has security, the Commission is proposing transactions when Regulation M was covered the syndicate’s short position that Rule 104 be amended to require adopted.75 We stated, however, that we and ceases such purchasing in the disclosure of syndicate covering bids. In could reconsider whether additional aftermarket, there is often a significant particular, we propose to amend Rule regulation was warranted.76 Since that decline in the security’s price.79 As a 104(h)(2) to require any person time, our staff has been reviewing result, syndicate covering transactions communicating a bid for the purpose of syndicate covering transactions and can, and studies show that they do, effecting a syndicate covering other aftermarket practices. The staff has enable underwriters to support the transaction to identify or designate the learned that in the U.S. syndicate aftermarket price of the offered security bid as such wherever it is covering transactions have replaced (in at levels that they may not obtain in the communicated.82 terms of frequency of use) stabilization absence of their activity, thereby We believe that requiring syndicate as a means to support post-offering interfering with free market forces.80 covering bids to be identified or market prices.77 Syndicate covering Finally, the investing public who buy designated in this way would help the offered shares in the aftermarket at protect investors by providing 73 See Regulation M Adopting Release, 62 FR at syndicate-influenced prices contemporaneous information about the 537. potential market impact of syndicate 74 Regulation M Adopting Release, 62 FR at 535. unknowingly bear the risk of a While Rules 101 and 102 primarily protect significant subsequent decline in the investors in the offering, the disclosure of the security’s price.81 82 Rule 104(h)(2) would continue to require prior stabilizing bid’s purpose under Rule 104 and the notice to the self-regulatory organization with direct proposal regarding syndicate covering bids will 3. Proposal for Syndicate Covering authority over the principal market in the United benefit investors in the aftermarket of an offered Transactions States for the security for which the syndicate security, as well as investors in the offering itself. covering transaction is effected. 17 CFR 75 See Regulation M Adopting Release, 62 FR at As discussed above, stabilization and 242.104(h)(2). Because Rule 104 already requires 537. Instead, the Commission required SRO syndicate covering transactions can both underwriters to make disclosures with respect to notification and recordkeeping of syndicate stabilizing bids, we believe it will not require significant effort or technical changes (to internal covering transactions. In so doing, the Commission 78 believed that SRO notification of syndicate covering Id. systems and procedures) on the part of underwriters transactions would serve to apprise regulators of 79 See, e.g., Reena Aggarwal, ‘‘Stabilization or other syndicate members in order to comply with their possible market effects, while the new Activities by Underwriters After Initial Public the proposed disclosure for syndicate covering bids. recordkeeping requirements would assist the Offerings,’’ 55 Journal of Finance 1075–1103 (June See text accompanying supra note 60. Moreover, Commission in assessing whether further regulation 2000) (noting that price levels decrease immediately while the burden would be on the underwriter or was warranted. Id. at 537–538; Regulation M after the underwriters’ ‘‘stabilizing’’ activities other person displaying or transmitting a syndicate Proposing Release, 61 FR at 17125. cease); Kathleen Weiss Hanley, A. Arun Kumar, and covering bid to satisfy the proposed disclosure 76 Regulation M Proposing Release, 61 FR at Paul J. Seguin, ‘‘Price Stabilization in the Market for requirements, we anticipate that the SROs will 17125. New Issues,’’ 34 Journal of Financial Economics, make changes to their existing rules and procedures 77 See, e.g., Ekkehart Boehmer and Raymond P.H. 177–197 (October 1993). to assist their members in complying with these 80 Fishe, ‘‘Underwriter Short Covering in the IPO See, e.g., Ekkehart Boehmer and Raymond P.H. requirements. For example, a special symbol or Aftermarket: A Clinical Study,’’ 10 Journal of Fishe, Who Ends up Short From Underwriter Short identifier could be used to identify the bid as a Corporate Finance, at 575–594 (September 2004) Covering? A Detailed Case Analysis of Underwriter syndicate covering bid. The Commission staff will (finding that short covering trades are often used as Stabilization in a Large IPO, at 32–34 (March 28, coordinate with the SROs to develop procedures to a substitute for Rule 104 stabilization in that they 2001) (finding that short covering trades can slow provide wide notice of such bids to the markets. serve the same purpose without the disclosure down price declines and that short covering Moreover, we are soliciting comment from the obligation associated with Rule 104 trades); Reena reduces the price impact of a sell by more than industry as to whether the Commission should Aggarwal, ‘‘Stabilization Activities by Underwriters 70%). require broader dissemination of the fact that an After Initial Public Offerings,’’ 55 Journal of 81 See, e.g., supra note 79. Underwriters have an underwriter is engaged in syndicate covering Finance 1075, 1079 (June 2000) (finding that incentive to artificially influence aftermarket transactions (e.g., by requiring the underwriter to underwriters do not stabilize through stabilizing activity because they have underwritten the risk of publish a press release or issue some notice to the bids, but by overselling the issue and covering this the offering, and a poor aftermarket performance market), especially in cases where syndicate short position by purchasing shares in the could result in reputational harm and subsequent covering bids are not currently displayed to the aftermarket). financial loss. market.
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bidding and purchasing activity.83 The regarding the current use of syndicate Based on discussions between the staff proposal also would regulate covering transactions and other and securities industry representatives, consistently activities that are similar in aftermarket activities by underwriters in we also understand that syndicate terms of their market impact. While the connection with securities offerings. managers justify the use of penalty bids Commission recognizes that Q. Should the Commission require by claiming that if the securities are sold stabilization and syndicate covering SROs to develop a mechanism for their within a short period of time, i.e., transactions both have the effect of members to comply with the Rule 104 flipped, the syndicate member has not supporting the market price of a proposal? Should the Commission earned its commission (i.e., for selling security, these activities do operate consider using a different mechanism shares to long-term investors) and the differently, and so we are not, at this other than identifying or designating the syndicate is entitled to reclaim the time, proposing to apply to syndicate bid itself, such as a press release or associated selling concessions via the covering bids the type of specific price, other notification mechanism? Should penalty bid provision. counter-party disclosure, or other the SROs develop a mechanism on their Penalty bids raise three troublesome limitations that now apply to own? issues. First, because Rule 104 does not stabilizing. Instead, the Commission Q. Should the Commission impose require the assessment of a penalty bid will continue to monitor such specific price or other conditions on to be disclosed to the market, penalty transactions, and consider whether any syndicate short covering bids or bids can function as an undisclosed additional regulation of syndicate purchases in the aftermarket? If so, form of stabilization by discouraging covering transactions in the future is please provide specific comment on immediate sales of IPO securities that appropriate. what conditions would be appropriate would otherwise lower a stock’s market Q. Does the manner in which a to apply and provide reasons for your price. Second, we understand that some managing underwriter effects syndicate recommendations. sales representatives may fear losing a short covering bids and purchases Q. Should the Commission consider sales commission if their customers sell present issues for complying with the making the disclosure requirements for their IPO shares.86 The salesperson’s above notification and disclosure stabilization bids the same as the concern may result in improper proposals? That is, would compliance proposed requirements for syndicate interference with a customer’s right to with the proposal be complicated by the covering bids? That is, should we also sell securities when the customer fact that managing underwriters may be amend Rule 104(h)(1) to require that any chooses to do so. Third, there is purchasing for accounts other than the person communicating a bid that is for evidence that the assessment of penalty syndicate concurrently with making the purpose of stabilizing identify or bids at the syndicate level results in syndicate short covering bids and designate the bid as a stabilizing bid discriminatory effects on the syndicate purchases? Please provide specific wherever it is communicated? member’s customers. In particular, we details of underwriter practices in this Q. Are there differences between understand that institutional regard and suggest what modifications, stabilization and syndicate covering that salespersons are not penalized when if any, should be made to the proposal would require different kinds of their institutional customers flip their to address these concerns. shares, but retail salespersons often are Q. What, if any, burdens would be disclosure or other regulation for penalized.87 While internal imposed by the proposed disclosure? syndicate short covering? If so, please compensation matters are not the focus For example, would there be any identify these differences and make of our proposed rule amendment, we are difficulty in identifying or designating a recommendations about the way in mindful that the pressure of a penalty bid as a syndicate covering bid (i.e., by which the proposed disclosure bid assessment by a managing attaching a symbol or modifier to the requirement should be modified? underwriter can result in discriminatory bid) wherever it is communicated? 4. Penalty Bids Q. Should the Commission consider, and improper conduct by a firm and its 88 in addition to the proposed disclosure, Penalty bids are a contractual term in salespeople towards its customers. revising Rule 104 to require a general underwriting agreements that allow the Because we believe the likelihood of notification to the market (e.g., through lead underwriter to reclaim a selling harm through the use of penalty bids is a press release, a website posting, or an concession paid to a syndicate member administrative message sent over the if that member’s customers sell their and amount to a small percentage of the total allocated shares in the immediate spread). Tape) that syndicate covering activity 86 84 See, e.g., M. Siconolfi and P. McGeehan, ‘‘Flip has commenced (and another aftermarket. Penalty bid provisions are Side: Wall Street Brokers Press Small Investors To notification when syndicate covering assessed at the election of the managing Hold IPO Shares—Big Institutions Can Cash Out activity has ceased)? underwriter, and are not assessed in all Quickly; the ‘Little Guy’ Can’t Without Penalties— Q. Should the Commission consider offerings. We understand that penalty Rife With Double Standards?’’, The Wall Street bids are rarely assessed, and are Journal, at A.1 (June 26, 1998). revising Rule 104 to require disclosure, 87 Id. See also W. Wilhelm, Jr., ‘‘Secondary such as disclosure in a press release, of assessed most often in connection with Market Price Stabilization in Initial Public either or both of the following offerings for which there is relatively Offerings,’’ 12 Journal of Applied Corporate information: (1) That the underwriting low demand to help prevent triggering Finance, 78–85 (January 1999) (finding that the suppression of small-quantity orders by penalty syndicate has an uncovered short or exacerbating a market price decline 85 bids, particularly during the first few days of position in the offered security; and (2) through investor sales of IPO shares. trading, bears most heavily on retail investors the size of the syndicate uncovered receiving IPO allocations). short position. We seek specific 84 17 CFR 242.100(b). The immediate sale by an 88 We also are aware that, even where penalty IPO purchaser is often referred to as ‘‘flipping.’’ See, bids are not imposed, some firms pressure their comment concerning this alternative, or e.g., Raymond P.H. Fishe, ‘‘How Stock Flippers sales representatives to discourage customers from any other alternatives, the Commission Affect IPO Pricing and Stabilization,’’ Journal of selling when a stock’s price declines, unrelated to should consider in regulating syndicate Financial and Quantitative Analysis, Vol. 37, No. 2 the recovery of any selling concessions. We covering transactions. We also seek (June 2002). understand that the NASD and the NYSE are 85 See, e.g., Reena Aggarwal, ‘‘Allocation of IPOs currently in the process of rulemaking designed to specific comment and empirical data and Flipping Activity,’’ 68 Journal of Financial address this specific concern. See File Nos. SR– Economics 111–135 (April 2003) (finding that NASD–2003–140 and SR–NYSE–2004–12 83 Regulation M Adopting Release, 62 FR at 537. penalty bids are assessed in only 13% of offerings (publication pending).
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significant, we propose that Rule 104 be sales, or excluding retail customers (but underwriter.94 This proposal would also amended to prohibit the use of such not institutional customers) from future prohibit issuers, underwriters, broker- bids. In particular, we propose to add a IPO allocations for quickly selling their dealers, and other distribution new subparagraph under the Rule, IPO shares, or require disclosure of their participants from accepting an offer which would state, ‘‘it shall be unlawful policies? If so, please provide specific from a prospective purchaser to pay to impose or assess any penalty bid in details regarding such practices or additional consideration in order to connection with an offering,’’ and to policies and suggest approaches to obtain an allocation of offered shares. eliminate the existing references to regulate such practices. 1. Background penalty bids in subparagraph (2) of the 5. Rule 104—Exception for Transactions The Commission has long considered Rule. We also propose that Rule 17a– in Rule 144A Securities 2(c) of the Exchange Act (which tying the award of allocations of offered imposes certain record keeping and Rule 104(j)(2) generally excepts from shares to additional consideration to be notification requirements) and Rule Rule 104 transactions in Rule 144A fraudulent and manipulative, and such 481(d) (which requires certain securities offered and sold in the U.S., practices have always been actionable information be included in a provided they are sold either to under Section 17(a) of the Securities Act prospectus) and Item 508(l) of qualified institutional buyers in a and Section 10(b) and Rule 10b–5 of the Regulations S–K and S–B (which transaction exempt from registration Exchange Act.95 In addition, some forms imposes certain disclosure requirements under the Securities Act or to non U.S. of tie-ins are already prohibited by for the ‘‘plan of distribution’’ section of persons in Regulation S offerings that Regulation M 96 and SRO rules.97 a prospectus) be amended to eliminate are made concurrently with a Rule 144A 90 all references pertaining to penalty bids. offering. When we adopted Regulation 94 The Commission has stated that such activity involves possible violations of the antifraud and While we considered requiring M, the exception under Rule 104 was intended to be identical to the exception anti-manipulation provisions of the federal disclosure of penalty bids by sales securities laws. See Securities Exchange Act for Rule 144A securities under Rules Release No. 9824 (October 16, 1972), 37 FR 22796 representatives to customers, we do not 91 believe that such disclosure would 101 and 102. We therefore propose to (October 25, 1972) (1972 Interpretive Release). SEC add the words ‘‘or any reference v. Credit Suisse First Boston Corp., No. 1:02 CV address the conflicts that arise with 00090, 2002 WL 479836 (D.D.C. 2002), Complaint respect to their use. We also believe that security’’ to Rule 104(j)(2) in order to make this subparagraph consistent with ¶¶ 1, 6 (alleging violations of NASD Conduct Rules such direct disclosure could be 2110 and 2330 and Section 17(a) under the confusing or intimidating, and the same exception under Rules 101 Exchange Act and Rule 17a–3(a)(6) thereunder, for (b)(10) and 102(b)(7) for transactions in encouraging customers to channel profits from hot ultimately have an even greater chilling Rule 144A securities. IPOs via excessive brokerage commissions in order effect on those investors who wish to Q. The Commission seeks specific to receive such hot shares). sell their shares in the aftermarket. We 95 See supra notes 6–7 and accompanying text. comment concerning the proposal to See also C. James Padgett, 52 SEC 1257 (1997), aff’d also understand that penalty bids are add the omitted language ‘‘or any rarely assessed, so our proposal to sub. nom, Sullivan v. SEC, 159 F.3d 637 (D.C. Cir. reference security’’ to Rule 104(j)(2). 1998) (finding underwriters violated Section 17(a) eliminate their use should not have a of the Securities Act and Section 10(b) of the great effect on the practices of most E. New Rule 106 Exchange Act and Rule 10b–5 thereunder by broker-dealers. The Commission is proposing new requiring that IPO purchasers sell their shares back Q. Should the Commission consider, to the firm at the beginning of aftermarket trading). Rule 106 of Regulation M to expressly See also 15 U.S.C. 77q (making unlawful fraudulent as an alternative, requiring syndicate prohibit distribution participants, conduct in the offer or sale of any security or members to disclose to their customers issuers, and their affiliated purchasers, security-based swap agreement by means of who seek to sell their IPO shares that directly or indirectly, from demanding, interstate commerce); 15 U.S.C. 78(j)(b) and 17 the firm or sales representatives could CFR.240.10b–5 (making it unlawful for any person soliciting, attempting to induce, or to ‘‘employ any device, scheme, or artifice to have its selling concession reclaimed if accepting from their customers any defraud’’ or to ‘‘engage in any act, practice, or the customer sells its IPO shares and consideration in addition to the stated course of business which operates or would operate that this raises a conflict of interest for offering price of the security.92 This new as a fraud or deceit upon any person’’). A ‘‘tie-in the firm and its salespersons? Should agreement’’ in the securities offering context rule would expressly prohibit certain generally refers to requiring either implicitly or we require disclosure of any other anti- abuses that occurred in connection with explicitly that customers give consideration in flipping policies that the firm has in IPOs, particularly those in the late addition to the stated offering price of any security place that may affect an investor’s 1990’s and in other ‘‘hot issue’’ periods, in order to obtain an allocation of the offered decision to purchase or sell IPO such as conditioning or ‘‘tying’’ an shares. Securities Exchange Act Release No. 10636 89 (February 11, 1974), 39 FR 7806 (February 28, 1974) shares? allocation of shares in a ‘‘hot issue’’ on (‘‘1974 Rule 10b–20 Proposing Release’’); Securities Q. Are there other aftermarket an understanding that the customer Exchange Act Release No. 11328 (April 2, 1975), 40 practices or policies that create conflicts would buy shares in another, usually FR 16090 (April 9, 1975) (‘‘1975 Rule 10b–20 of interest that should be prohibited or 93 Proposing Release’’). These arrangements can also ‘‘cold,’’ offering, or on paying violate other provisions of the securities laws and subject to increased disclosure? There excessive commissions to the SRO rules. SEC v. Credit Suisse First Boston Corp., may be other practices that investors No. 1:02 CV 00090, 2002 WL 479836 (D.D.C. 2002). should be made aware of, or other 90 17 CFR 242.104(j)(2). See also Regulation M 96 Securities Exchange Act Release No. 6536 conduct that raises the same type of Adopting Release, 62 FR at 536. (April 24, 1961) (reminding dealers that requiring concerns as discussed above. For 91 Regulation M Adopting Release, 62 FR at 536, customers to make purchases in the aftermarket for the offered security in exchange for allocations of example, should the Commission n. 119. 92 This proposal would apply to any distribution that security violates the anti-manipulation rules prohibit firms from imposing anti- of securities, i.e., a public offering or private including Rule 10b–6, the predecessor to Regulation flipping policies that discriminate placement, and would apply equally to initial and M); Staff Legal Bulletin No. 10 (August 25, 2000), against retail investors, such as secondary offerings. available at http://www.sec.gov/interps/legal/ 93 slbmr10.htm. rescinding sales commissions for retail An IPO is considered to be a ‘‘cold’’ offering when there is weak investor interest in the IPO 97 See NASD Conduct Rule 2710 (2004) (requiring shares. An IPO is considered to be a ‘‘hot’’ offering disclosure to the NASD of all relevant aspects of the 89 For example, a firm may have a policy or when investor demand significantly exceeds the offering including accurate disclosure of practice of excluding clients from future IPOs if supply of securities in the offering. Shares in hot underwriting compensation); NASD Conduct Rule they flip shares, irrespective of whether a penalty offerings often trade at substantial premiums to the 2330 (2003) (prohibiting member firms from sharing bid is assessed. offering price. Continued
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Underwriters’ or issuer’s demands for allocate shares in ‘‘hot offerings’’ to securities, to purchase ‘‘cold’’ IPO consideration in addition to the stated customers who agree to make shares,105 and to make purchases in the offering price have several pernicious aftermarket purchases in ‘‘cold aftermarket 106 of the offered security. effects. These activities can contribute offerings,’’ the purchasers in the cold Given the widespread nature of these to a false impression of scarcity in the offerings are deceived as to the true abuses concerning underwriters offered shares. This, in turn, can demand for that offering.101 Proposed inducing or accepting additional stimulate and distort the offering and Rule 10b–20 also would have prohibited aftermarket prices by creating the underwriters from requiring customers compensation from customers for 107 impression that any unfulfilled demand to pay excessive commissions or allocations, as demonstrated by for the offered shares may only be agreeing to profit sharing arrangements enforcement actions and studies, we satisfied in the aftermarket.98 Moreover, with distribution participants in order believe that an express Commission rule such activities create the impression to receive allocations of IPO shares. The that complements the current provisions that the underwriters have ‘‘rigged the proposal also broadly prohibited any of Regulation M would be beneficial. game’’ and only the market participants kind of arrangement where the customer Although this conduct may be who know they are expected, and are would be required to perform any act, actionable, for example, under current willing, to pay the additional or refrain from any conduct, effect Regulation M, the general antifraud and consideration are able to participate in another transaction or refrain therefrom, anti-manipulation provisions of the IPOs. other than what was disclosed in the federal securities laws, as well as SRO In 1974 and 1975, in order to broadly registration statement or offering rules, we believe that a prophylactic and explicitly address such circular in order to receive an rule specifically addressing the full manipulative conduct, the Commission allocation.102 The Commission range of misconduct that we observed in proposed Rule 10b–20 to prohibit withdrew the proposal in 1988, in part this context is necessary to preserve the broker-dealers and others from due to the passage of time since its integrity of the securities offering (explicitly or implicitly) demanding proposal, and because the Commission process and to protect investors. from their customers any payment or believed that such agreements already consideration, including a requirement could be reached under the existing Complaint ¶¶ 1, 5 (alleging violations of NASD to purchase other securities, in addition antifraud and anti-manipulation Conduct Rules 2110 and 2330 and Section 17(a) of to the security’s disclosed offering provisions of the federal securities the Exchange Act and Rule 17a–3(a)(6) thereunder price.99 This proposal would have laws.103 for improperly sharing customer profits by prohibited, for example, conditioning or During periods of high demand for allocating ‘‘hot’’ IPO shares to customers and ‘‘tying’’ an allocation of shares in a hot new IPOs, such as occurred in the late receiving in return shares of customer profits via excessive commissions or markdowns). Robertson issue on an agreement to buy shares in 1990s, some underwriters induced or Stephens is alleged to have ranked customers another offering or in the aftermarket of required customers who wished to according to customers’ total commission dollars another offering, for which there may be receive ‘‘hot’’ IPO allocations to provide and used that ranking system to encourage a lack of investor demand (i.e., cold additional consideration to obtain an customers to increase their commissions in order to 100 receive IPO allocations. Id. at ¶¶ 14–26 . It was offerings). When underwriters allocation of IPO shares. For example, expected that a portion of the profits a customer the Commission has alleged that made on an allocation would be filtered back to the profits with customer accounts); NASD Conduct underwriters required or induced firm by way of excessive commission business. Id. Rule 2120 (2003) (prohibiting members from using customers to pay excessive at ¶¶ 29–33. The NASD has also taken related manipulation, deception or fraud to induce or effect 104 actions involving payments of excessive transactions in offered securities); NASD Conduct commissions on transactions in other commissions in exchange for IPO allocations. See Rule 2310–2 (2002) (requiring fair dealing in all NASD Notice to Members 4–50 (July 2004) relationships with customers); 15 U.S.C. 78q(a) 101 See 1974 Rule 10b–20 Proposing Release, 39 (announcing that Bear Stearns & Co., Inc., Deutsche (requiring broker dealers to make and keep records FR at 7806. Bank Securities, Inc., and Morgan Stanley & Co., of terms and conditions of all purchases and sales 102 1975 Rule 10b–20 Proposing Release, 40 FR at Inc. were censured for engaging in improper profit of securities); NASD Conduct Rule 2210 (2001) 16091–16092. sharing with customers through the use of excessive (establishing professional standard of conduct 103 See Securities Exchange Act Release No. commissions). required of NASD members); NASD Conduct Rule 26182 (October 14, 1988), 53 FR 41206. See also C. 105 See SEC v. J.P. Morgan Securities, Inc. at supra 2110 (1996) (requiring that members observe ‘‘high James Padgett, 52 SEC 1257 (1997), aff’d sub. nom, note 26 and accompanying text. standards of commercial honor and just and 106 equitable principles of trade’’); 17 CFR 240.10b–5. Sullivan v. SEC, 159 F.3d 637 (DC Cir. 1998) Id. (finding underwriters violated Section 17(a) of the 107 98 See 1974 Rule 10b–20 Proposing Release, 39 FR See Report of the Special Study of the Securities Act and Section 10(b) of the Exchange at 7806 (describing how broker inducements for Securities Markets of the Securities and Exchange Act and Rule 10b–5 thereunder by requiring that allocating offered shares: (1) encourages Commission, H.R. Doc. No. 88–95, pt. 1 at 555–56 participation in cold offerings by investors with a IPO purchasers sell their shares back to the firm at (1 Sess. 1963) (noting that underwriters used view toward immediate resale of the security; (2) the beginning of aftermarket trading). Of note, the manipulative tactics in order to increase issues to obscures actual demand for the offering making an Commission determined that these tie-in the level of ‘‘hot’’ offerings and create a ‘‘pop’’ in assessment by investors of true demand difficult agreements created a materially false impression of the offering price); Report of the Securities and thus artificially affecting the offering price; and (3) the extent of aftermarket activity. As such, the Exchange Commission Concerning the Hot Issues stimulates demand for the offering and forces arrangement operated as a fraud upon the market Markets (August 1984) at 37–38 (noting existence of investors who could not participate to buy in the and defrauded aftermarket purchasers. Id. at n. 53. manipulative tie-in agreements during the hot aftermarket). 104 See SEC v. Credit Suisse First Boston Corp., issues market between 1980 and 1983); SEC v. 99 As proposed in 1975, Rule 10b–20 would have No. 1:02 CV 00090, 2002 WL 479836 (D.D.C. 2002), Credit Suisse First Boston Corp., No. 1:02 CV 00090, applied to offerings registered under the Securities Complaint ¶¶ 1, 6 (alleging violations of NASD 2002 WL 479836 (D.D.C. 2002), Complaint ¶¶ 29– Act or on Form 1–A. 1975 Rule 10b–20 Proposing Conduct Rules 2110 and 2330 and Section 17(a) 45 (noting that violative conduct was not isolated Release, 40 FR 16090. As originally proposed in under the Exchange Act and Rule 17a–3(a)(6) but rather business as usual and pervasive). Brokers 1974, Rule 10b–20 would have applied to any thereunder, for encouraging customers to channel expected customers to pay CSFB for having granted securities offering utilizing jurisdictional means. profits from hot IPOs via excessive brokerage them ‘‘hot’’ IPO allocations, considering such 1974 Rule 10b–20 Proposing Release, 39 FR at 7806. commissions). CSFB encouraged its retail customers allocations quick profits on which they (the 100 See 1974 Rule 10b–20 Proposing Release to pay excessive commissions in correlation to the underwriters) deserved something in return. Id. at (citing Securities Exchange Act Release No. 9824 profit (sometimes up to 65%) they made in flipping ¶ 36. See also SEC v. Robertson Stephens, Inc., (October 16, 1972), 37 FR 22796 (October 25, 1972) their IPO shares through the purchases of off-setting Final Judgment of Permanent Injunction and Other (‘‘1972 Interpretive Release’’) (noting that allocating trades in order to receive IPO allocations. Id. at Relief Against Robertson Stephens, Inc., 03 Civ. customers shares of hot IPOs in exchange for ¶¶ 17–25, 42–43. See also SEC v. Robertson 0027 (RL) (D.D.C. 2003), Complaint ¶¶ 23–28 customer purchases of cold IPOs violates the Stephens, Inc., Final Judgment of Permanent (pressuring customers to increase their antifraud and anti-manipulation provisions of the Injunction and Other Relief Against Robertson commissions in order to receive allocations by use Exchange Act). Stephens, Inc., 03 Civ. 0027 (RL) (D.D.C. 2003), of their ‘‘ranking system’’).
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2. Proposal customer has not paid excessive Commission also requests general Proposed new Rule 106 of Regulation compensation in relation to those comment on the following: M would explicitly prohibit distribution services. On balance, we believe a Rule 103 of Regulation M describes participants, including underwriters, comprehensive rule specifically the conditions for permissible passive and issuers and their affiliates, directly directed at the types of impermissible market making during the restricted or indirectly, from demanding, conduct discussed herein is warranted. period for a distribution of a Nasdaq soliciting, or attempting to induce, or Such conduct, which often recurs security.110 Passive market making was accepting an offer from their customers during ‘‘hot issues’’ periods, included in Regulation M to alleviate of any payment or other consideration undermines the fundamental function of special liquidity problems that could in addition to the security’s stated the securities markets as an exist for a Nasdaq security in consideration. For example, this rule independent pricing mechanism and distribution, if distribution participants would prohibit distribution erodes investor confidence in the or their affiliates who are Nasdaq market participants, issuers and their affiliated securities offering process generally. makers were required to withdraw from persons, in connection with allocating Having a prophylactic rule that making a market during the restricted an offered security, from inducing, expressly addresses the conduct period.111 The Commission is not soliciting, requiring or otherwise discussed above would therefore proposing to amend Rule 103 at this accepting an offer from a potential prevent potential misconduct in the time. However, as part our effort to purchaser to purchase any other future as well as enhance the comprehensively monitor the operation security to be sold or proposed to be Commission’s enforcement capabilities. of Regulation M, we seek comment offered or sold by such person. Q. Is the language of the rule about Rule 103. Similarly, Rule 106 would also prohibit sufficient to address the full scope of Q. Have the structural changes to the distribution participants, issuers and manipulative conduct involved in the Nasdaq market since Regulation M’s their affiliated persons, in connection offering process, including the conduct adoption affected the operation of Rule with allocating an offered security, from discussed above? If it does not, how 103? Does Rule 103 continue to be inducing, soliciting, requiring (or should the language be changed? What necessary? If so, why? If not, why not? accepting an offer from) prospective types of conduct should or should not Q. Does the existence of multiple customers to effect any other transaction be included within the rule? Please sources of liquidity for Nasdaq or refrain from any of the foregoing, provide specific examples and any securities, such as electronic other than as stated in the registration suggested alternative language. communications networks (ECNs), statement or applicable offering Q. Commenters are asked to discuss alleviate the liquidity concerns Rule 103 document for the offer and sale of such whether the proposed language was meant to address? If so, how? If not, offered security. Rule 106 would apply adequately protects legitimate customer why not? to any distribution of securities, relationships or might potentially IV. Paperwork Reduction Act whether a public offering or private interfere with these relationships. If the placement of securities, and would language does interfere with such Certain provisions of the proposed apply to initial as well as secondary relationships, please explain how and amendments to Regulation M contain offerings.108 provide specific examples and ‘‘collection of information’’ Rule 106 would complement the recommendations. requirements within the meaning of the current provisions of Regulation M. Like Q. Although firms are required to Paperwork Reduction Act of 1995 Regulation M, the proposed rule is create and maintain records of customer (PRA);112 the Commission has intended to protect the integrity of the orders, should firms also be required to submitted information to the Office of offering process. Presently, the focus of create and maintain records of Management and Budget (OMB) for Regulation M is on the protection of the indications of interest and the basis for review in accordance with 44 U.S.C. integrity of the pricing of an offering by IPO allocations? To what extent do 3507(d) and 5 CFR 1320.11. The prohibiting distribution participants and firms already create and maintain Commission is revising the currently issuers from bidding for, or purchasing, records indicating that information? approved collection of information the offered securities in the market, or How burdensome would such a titled ‘‘Regulation M’’ under OMB attempting to induce others to do so. recordkeeping requirement be? control number 3235–0465. An agency Rule 106 would address a broad range Q. Should the Commission consider may not conduct or sponsor, and a of conduct by distribution participants prohibiting allocations of initial public person is not required to respond to, a and issuers that can stimulate the offering shares to persons based solely collection of information unless it market for the offered shares (thereby on their status? For example, should a displays a currently valid control distorting the offering price and the person be prohibited from receiving number. aftermarket). It also would address initial public offering shares because of conduct that can operate as a fraud on his or her status as CEO of a public or A. Summary of Collections of prospective purchasers of IPOs, who are nonpublic company?109 Information unaware of the underwriters’ additional III. General Request for Comment 1. Proposed Amendments to Rule requirement for receiving an allocation. 101(b)(7)113 We note, however, that the proposed Any interested person wishing to rule is not intended to interfere with submit written comments on any aspect The proposed amendments to Rule legitimate customer relationships. For of the proposed rules discussed in this 101(b)(7) of Regulation M would require example, this provision is not intended release, as well as on other matters that to prohibit a firm from allocating IPO may have an impact on the proposals 110 17 CFR 242.103. shares to a customer because the contained herein, is requested to do so. 111 See Regulation M Adopting Release, 62 FR at Commenters should provide empirical 534. customer has separately retained the 112 44 U.S.C. 3501 et seq. firm for other services, when the data to support their views. The 113 We have also proposed conforming changes to Rule 17a–4(b)(13) but the paperwork burden derives 108 See supra note 3 for the definition of 109 See IPO Blue Ribbon Report, Recommendation from the substance of the proposed amendments to distribution. 17 CFR 242.100(b). 9. Rule 101(b)(7) discussed herein.
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distribution participants and their necessary to prevent fraudulent, discussions with broker-dealers affiliated purchasers to maintain records manipulative and deceptive acts by concerning their practices and of their reliance on the de minimis issuers, broker-dealers and others. The experience with the de minimis transactions exception from Rule 101 of purpose of the proposed amendment to transaction exception, we estimate that Regulation M. Currently, Rule 101(b)(7) Rule 101(b)(7) is to have a record that of the 614 brokers who engage in excepts from the rule’s prohibitions would allow Commission and SRO underwriting would utilize the de purchases and unaccepted bids made by examiners to review distribution minimis transaction exception once distribution participants and their participants’ compliance with Rule 101 every two years. affiliates during the restricted period and to provide a basis for potentially 2. Proposed Amendments to Rule 104 that total less than 2% of the distributed uncovering patterns of abuse or policies security’s ADTV only if the person and procedures that are not reasonably Proposed amendments to Rule 104 making the bid or purchase maintains designed to achieve compliance with will require distribution participants, and enforces written policies and the regulation. The purpose of the such as managing underwriters, who are procedures reasonably designed to proposed amendments to Rule 104 is to communicating a syndicate covering achieve compliance with Regulation M. improve the transparency of syndicate bid, to identify or designate the bid as When Regulation M was adopted, the covering bids through contemporaneous a syndicate covering bid wherever it is Commission stated a firm is expected to identification of the bid to the market communicated. Syndicate covering ‘‘review its policies and procedures and where it is communicated in order to: transactions typically are effected by a modify them as appropriate’’ in order to (1) Protect the integrity of the trading managing underwriter on behalf of the qualify for the exception.114 While market by providing investors, both in syndicate. Managing underwriters do broker-dealers are currently required the offering and in the aftermarket, with not utilize syndicate covering under Rule 17a–3 under the Exchange contemporaneous information about transactions in all offerings. Rather, Act to make and keep records of the actual syndicate purchasing activity, (2) syndicate covering transactions terms of each brokerage order and each preclude the manipulative effects of generally occur in connection with purchase and sale of a security for a such bids, and (3) prevent the investing IPOs. Further, only a fraction of all period of three years, the proposed public from unknowingly bearing the IPOs, typically those IPOs where supply amendments to Rule 101(b)(7) would be cost of undisclosed syndicate covering exceeds investor demand for the offered a new collection of information because activities. security, are facilitated by the managing it would require firms to maintain a underwriter by means of syndicate separate written record of information C. Respondents covering transactions. The number of IPOs conducted per year is also about each bid or purchase that is made 1. Proposed Amendments to Rule dependent on general economic in reliance on the de minimis exception. 101(b)(7) Like Rule 17a–3, the proposed conditions, e.g., the business cycle. As The proposed amendments to Rules amendment to Rule 101(b)(7) would noted above, OEA estimates that 101(b)(7) would require those require these records be maintained for approximately 614 active broker-dealers distribution participants, and their a period of three years. registered with the Commission engage affiliated purchasers who rely on the in underwriting. The staff estimates that 2. Proposed Amendments to Rule 104 Rule 101 exception for de minimis there were 88 equity IPOs in 2003, and The proposed amendments to Rule transactions to make and keep records that all such IPOs involved a managing 104 of Regulation M would require any of the bids or purchases made in underwriter.117 Based on the staff’s person communicating a bid for the reliance on the de minimis exception. review of syndicate covering practices purpose of effecting a syndicate Therefore, the proposed amendments in a sample of offerings in one year, the covering transaction to identify or would apply to all distribution staff believes that approximately 53% designate the syndicate covering bid as participants and their affiliated (or 47 offerings) of such IPOs were such wherever it is communicated. Rule purchasers who rely on the exception in facilitated by syndicate covering 104 currently requires that any person connection with follow-on, i.e., transactions. secondary, distributions of securities effecting a syndicate covering D. Total Annual Reporting and other than those qualifying for the transaction shall provide prior notice to Recordkeeping Burden the self-regulatory organization with actively-traded securities exception direct authority over the principal under Rule 101 (i.e., securities that have 1. Proposed Amendments to Rule market in the United States for the at least $1 million ADTV value and 101(b)(7) security for which the syndicate $150 million public float value). The The proposed amendments to Rule covering transaction is effected. We Commission’s Office of Economic 101(b)(7) of Regulation M would require believe the identifying or designating Analysis (‘‘OEA’’) estimates that there all distribution participants and the bid as a syndicate covering bid, are approximately 6,562 active broker- affiliated purchasers who rely on the de would be an additional collection of dealers registered with the Commission, minimis exception to maintain a record information because the proposal would of which 614 engage in underwriting.115 of each bid or purchase made in reliance require entities to disclose syndicate Based on OEA’s review of offerings in of the exception. We believe that covering bids. 2003, we estimate there are distribution participants already make approximately 64 offerings annually of records of the type of information B. Need for and Proposed Use of the securities other than actively-traded required in the proposed amendment to Collection of Information securities.116 Based on the staff’s Rule 101(b)(7) since broker-dealers must The information that would be record the terms of bids and required to be collected under the 115 This number is based on OEA’s review of 2003 transactions they effect under Rule 17a– proposed amendments to Rules FOCUS Report filings reflecting registered broker- dealers. This number does not include broker- 3 and keep such records for 3 years. 101(b)(7) and 104 of Regulation M is dealers that are delinquent on FOCUS Report However, the proposal would require filings. 114 Securities Exchange Act Release No. 38067 116 This number is based on information provided 117 This number is based on information provided (December 20, 1996), 62 FR 520, 530. by the SEC’s Office of Economic Analysis. to the Commission staff by OEA.
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that a record of the de minimis bids and conditions, e.g., the business cycle. We E. Collection of Information Is purchases be kept separately. Thus, we estimate that approximately 614 active Mandatory believe the proposed amendments broker-dealers registered with the 1. Proposed Amendments to Rule would impose an additional collection Commission engage in underwriting. In 101(b)(7) of information by requiring distribution 2003, we estimate that there were 88 participants to maintain the records equity IPOs of which approximately The collection of information is separately. 53% (or 47 offerings) involved a mandatory if a distribution participant Based on the staff’s review of broker managing underwriting effecting or its affiliated purchasers wish to rely practices with respect to record keeping syndicate covering transactions. We on the de minimis transactions and their reliance on the de minimis exception from Rule 101 of Regulation assume for purposes of this analysis that transaction exception, we understand M. that the de minimis exception is rarely each offering had one managing utilized by distribution participants and underwriter. The staff reviewed the 2. Proposed Amendments to Rule 104 that it would take each broker number of syndicate covering The collection of information is approximately 20 minutes to create and transactions made in a sample of mandatory for all persons maintain files for all de minimis bids offerings in a particular year and based communicating a bid that is for the and purchases made per offering. Based upon that data, the staff believes that on purpose of effecting a syndicate on the staff’s review of broker-dealer average approximately 22 syndicate covering transaction. experiences, we assume that one covering bids occur for each IPO that F. Confidentiality syndicate member per offering would involves syndicate short covering. rely on the de minimis exception once It was determined at the time of 1. Proposed Amendments to Rule every 2 years (or 0.5 times per year). We Regulation M’s adoption that in 101(b)(7) estimate that the total estimated annual instances where such disclosure was The collection of information under hour burden per year is 10.7 burden required for stabilizing bids that it the proposed amendments to Rule hours (the product of one syndicate would require 15 minutes per bid.118 101(b)(7) would be provided to member per offering, 64 offerings Commission and SRO examiners, but involving non-actively traded securities, We are requiring only identification of not subject to public availability. 0.5 reliances per year, and 20 minutes the syndicate covering bids in addition recordkeeping per offering). We also to that which is already required under 2. Proposed Amendments to Rule 104 estimate the paperwork compliance for Rule 104 and we believe this will impose only nominal costs and time The collection of information under the proposed amendments for each the proposed amendments to Rule 104 distribution participant per offering is upon the syndicate manager or other person communicating the syndicate would be communicated and displayed approximately 10 minutes per year (the publicly. product of one syndicate member per covering bid. offering, 0.5 reliances per year, and 20 Based on the number of IPOs in 2003 G. Record Retention Period minutes recordkeeping per offering). that involved syndicate short covering 1. Proposed Amendments to Rule With respect to the proposed and the average number of short 101(b)(7) amendments to Rule 101(b)(7), we covering bids per offering, the annual estimate that the broker-dealers bear The proposed amendments to Rule number of syndicate short covering bids 100% of the burden of preparation 101(b)(7) would require a broker or was 1034 (the product of 47 offerings, internally since the broker-dealers dealer to preserve the records required relayed to the staff that they would and 22 syndicate covering bids per under the rule in accordance with create and maintain such files offering). We estimate that identifying or proposed Rule 17a–4(b)(13). Rule 17a– internally. designating each syndicate bid would 4(b)(13) would require distribution take approximately 15 minutes. Thus, participants and their affiliated 2. Proposed Amendments to Rule 104 the total estimated annual hour burden purchasers to create and maintain The proposed amendments to Rule per year is 258.5 burden hours (the separate written records of each bid or 104 of Regulation M would require product of 1034 syndicate covering bids purchase made in reliance on the de managing underwriters to identify or and 15 minutes per bid). As stated minimis exception for a period of three designate syndicate covering bids as above, typically the managing years, the first two years in an accessible such wherever communicated and to underwriter communicates the place. provide notice of its intention to engage syndicate covering bid. Therefore, we 2. Proposed Amendments to Rule 104 in short covering to the SRO with direct also estimate that the paperwork authority over the principal market in compliance for the proposed rules for The proposed amendments to Rule the United States for the security for each managing underwriter is 104 do not contain any recordkeeping which the syndicate covering bid was approximately 5.5 annual burden hours requirements. made. per offering (258.5 burden hours/47 Managing underwriters do not utilize H. Request for Comment offerings). With respect to the proposed syndicate covering transactions in all Pursuant to 44 U.S.C. 3506(c)(2)(B), offerings. Rather, syndicate covering Rule 104 amendments, we estimate that the Commission solicits comments to: transactions generally occur in the syndicate member bears 100% of the (1) Evaluate whether the proposed connection with IPOs. Further, only a burden of preparation internally collection of information is necessary fraction of all IPOs, typically those IPOs because the managing underwriter for the proper performance of the where supply exceeds demand for the communicates the syndicate covering functions of the agency, including security, are facilitated by the managing bids on behalf of the syndicate. whether the information shall have underwriter by means of syndicate practical utility; (2) evaluate the covering transactions. The number of accuracy of the Commission’s estimate IPOs conducted per year is also of the burden of the proposed collection dependent on general economic 118 62 FR at 542. of information; (3) determine whether
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there are ways to enhance the quality, Commenters should provide analysis with the broker-dealer that the broker- utility, and clarity of the information to and data to support their views on the dealer is to act as its underwriter or (ii) be collected; and (4) evaluate whether costs and benefits associated with the the time a registration statement is filed there are ways to minimize the burden proposed amendments. with the Commission or other offering of the collection of information on those document is first circulated to potential A. Proposed Amendments to Rule 100: who are to respond, including through investors. This proposed expansion of Definition of Restricted Period and IPO the use of automated collection the IPO restricted period, were it techniques or other forms of information 1. Benefits adopted, would capture in a technology. We believe that the proposed prophylactic rule, conduct that is Persons submitting comments on the amendments to Rule 100 of Regulation already actionable under the antifraud collection of information requirements M would clarify what is considered to and anti-manipulation provisions of the should direct them to the Office of be an IPO under the regulation and federal securities laws. We note that the Management and Budget, Attention: when a restricted period under Rule 101 amendment applies only to IPOs which Desk Officer for the Securities and are a small portion of all offerings. Exchange Commission, Office of and 102 begins for IPOs, thereby facilitating compliance by distribution Similarly, we propose to expressly Information and Regulatory Affairs, describe the applicable restricted period Washington, DC 20503, and should also participants, issuers, their affiliates and others. By explicitly defining IPO we are for valuation and election periods. This send a copy of their comments to proposal is an application of a long- Jonathan G. Katz, Secretary, Securities helping to ensure that the extended restricted period will apply to an standing, broadly published, and Exchange Commission, 450 Fifth interpretation regarding the application Street, NW., Washington, DC 20549– issuer’s initial offerings of debt and equity, as well as clarifying when the of Regulation M in the context of 0609, with reference to File No. S7–41– valuation and election periods. 04. Requests for materials submitted to extended restricted period would be We understand that distribution OMB by the Commission with regard to applicable to issuers whose securities participants already have policies and this collection of information should be already trade on foreign markets. procedures in place to monitor for in writing, refer to File No. S7–41–04, Similarly, we propose to amend the compliance with the restricted periods and be submitted to the Securities and definition of restricted period to under current Regulation M. The only Exchange Commission, Records incorporate a long-standing incremental costs of the proposed Management, Office of Filings and interpretation under Regulation M, that Information Services, 450 5th Street, is, to expressly describe the applicable restricted period for IPOs would be NW., Washington, DC 20549. OMB is restricted period for corporate actions associated with monitoring for required to make a decision concerning such as valuation and election periods. Regulation M compliance during that the collections of information between We also propose to define these terms portion of the restricted period which is 30 and 60 days after publication. in Rule 100. By amending the definition new—the period beginning when an Consequently, a comment to OMB is of the restricted period to explicitly issuer and broker dealer reach an best assured of having its full effect if define the applicable restricted period understanding that the broker-dealer is OMB receives it within 30 days of for IPOs and for election and valuation to act an underwriter or when a publication. periods, we would provide certainty to registration statement is filed or offering the issuers, distribution participants, document is circulated to potential V. Consideration of Proposed their affiliates and others, as to when investors until 5 days prior to pricing. Amendments to Regulation M’s Costs exactly the restricted period begins and Because there is no trading market for 119 and Benefits ends. In addition, a defined restricted an IPO offered security prior to the The Commission is considering the period for IPOs and explicitly defining pricing of offering, distribution costs and benefits of the proposed the restricted period for valuation and participants should not incur any costs amendments to Regulation M and new election periods would help to combat associated with monitoring for open Rule 106 thereunder. The Commission manipulative abuses that may occur market purchases during the new is sensitive to these costs and benefits, prior to an IPO and during price portion of the restricted period. and requests data to quantify the costs sensitive valuation and election periods However, there may be costs associated and the value of the benefits provided, and that have been the subject of recent with training employees of distribution and encourages commenters to discuss enforcement actions. By prohibiting participants to understand the any additional costs or benefits beyond inducements, bids or purchases well in application of the proposed restricted those discussed here. In particular, the advance of IPO pricing the proposed period. However, as stated above, we Commission requests comment on the amendment would allow the securities believe such activity prior to an IPO is potential costs for any modification to markets to function as independent already prohibited by the general both computer systems and surveillance pricing mechanisms by reflecting true antifraud and anti-manipulation mechanisms and for information demand for the security and improve provisions of the securities laws and gathering, management, and the integrity of the capital raising distribution participants and their recordkeeping systems or procedures, as process. Prohibiting such activity would employees should not engage in such well as any potential costs or benefits also reduce the investors’ perception of conduct at any time prior to the resulting from the proposals for scarcity of IPO stock, which affects the distribution of the IPO. Similarly, registrants, issuers, investors, broker- pricing of and aftermarket trading in the distribution participants, issuers, their dealers, other securities industry IPO security. affiliates and others are already professionals, regulators and others. prohibited under Regulation M during 2. Costs election and valuation periods. As such, 119 The Commission is also proposing certain The proposed amendment would they should already have undertaken conforming changes to Rules 17a–2, 17a–4, 104(j)(2) expand the restricted period for an IPO training, compliance procedures and under the Exchange Act, and Rule 481 and Item 508 under the Securities Act. The costs and benefits, so that such period would generally monitoring to comply with the however, arise from the substance of the proposed commence from earlier of (i) the time Regulation. Nonetheless, the proposals amendments in the rule changes discussed herein. that an issuer reaches an understanding may require one-time changes by certain
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distribution participants, issuers, thresholds, the proposal would apply exception for de minimis transacations affiliated purchasers and others. Thus, the actively-traded security exception would be required to make and keep costs, if any, associated with training, and one- or five-day restricted period to records of the bids or purchases made modifying, revising policies and the type of issuers and securities the in reliance on the de minimis exception. behavior and monitoring for compliance Commission had considered appropriate As discussed below, the staff estimates should be minimal. at Regulation M’s adoption, i.e., those this annual burden to be 10.7 burden Of note, we believe that costs, if any, with a relatively limited potential for hours. associated with the proposed manipulation. Currently under Regulation M, amendment concerning IPOs would distribution participants, their affiliates only be borne by distribution 2. Costs and others are expected to ‘‘review participants. Our experience indicates The Commission believes that the [their] policies and procedures and that distribution participants, rather adjustment to ADTV and public float modify them as appropriate’’ in order to than issuers, have engaged in inducing value would not impose costs in qualify for the de minimis exception or attempting to induce persons to bid addition to those considered when and no additional requirement for or purchase a covered security prior Regulation M was adopted since the concerning policies and procedures is to the 5-day IPO restricted period. The amendments will reinstate the level of proposed at this time. Additionally, Commission believes that even if there restrictiveness in effect at the time of broker-dealers are already required are some costs generated by this Regulation M’s adoption. As a practical under Rule 17a–3 of the Exchange Act proposal, such costs are minimal and matter, should the ADTV and public to make and keep records of the terms are justified by the facilitation of float values be adjusted as proposed, of each brokerage order and each investment and enhancement of certain issuers or securities will no purchase and sale of a security for a investor confidence in the IPO capital longer be exempt from Rules 101 and period of three years. The proposed raising process that we believe will 102 or will be subject to a longer amendments would only require firms result from this proposal. We are restricted period, and so issuers, to maintain a separate written record of however sensitive to potential costs distribution participants, their affiliates the terms of the bids and purchases borne by industry participants and and others must modify their activities made in reliance upon the exception generally solicit comment on any costs to comply with the applicable restricted from Rule 101 for a period of 3 years. this proposed amendment could period. This adjustment to a different Based on discussions with distribution generate and whether the proposed restricted period (either one- or five-day, participants about their experience with amendments impose greater costs than or none) may impose some initial costs the de minimis exception, the presently exist under the federal upon issuers, distribution participants, Commission believes these would be securities laws. their affiliates and others. The one- and infrequent violations requiring B. Proposed Amendments to Rules 100, five-day restricted periods, however, infrequent recordkeeping. Further, the 101 and 102: ADTV and Public Float have been in place since 1997 so review of the policies and procedures is Value Thresholds issuers, distribution participants, their already required under Regulation M. affiliates and others should already have For purposes of the PRA, the staff 1. Benefits the capabilities and policies and estimates an annual burden of 10 The Commission believes the procedures in place in order to be able minutes per distribution participant to proposed adjustments to ADTV and to impose such restrictions on issuers keep separate records of their reliance public float values will reset the and their securities. At this time, the on the exception. Therefore, the staff thresholds to their original Commission believes this one-time believes the proposed amendments restrictiveness and thereby modification by issuers, distribution regarding recordkeeping of de minimis appropriately apply the one- and five- participants and their affiliates, should violations of Regulation M would day restricted period or actively-traded be minimal. The Commission has no impose minimal costs. exception to the appropriate securities, data on these costs and solicits D. Proposed Amendments to Rule 104: thus minimizing the potential for comments as to whether the proposed Syndicate Covering and Penalty Bids manipulation during offerings. In order amendments impose greater costs on to make the thresholds for the restricted issuers than the current rule. 1. Benefits period and actively-traded securities Identification or designation of and reference securities current, the C. Proposed Amendments to Rule 101(b)(7): De Minimis Exception syndicate covering transactions would Commission is proposing to increase the help to protect investors by providing ADTV and public float value thresholds 1. Benefits contemporaneous information about the to account for the decline in the value actual occurrences of syndicate of the dollar that has occurred since We believe the proposed amendments purchasing activity. The proposal 1996 (i.e., adjust the values by the to Rule 101(b)(7) of Regulation M would obligates managing underwriters and Consumer Price Index (‘‘CPI’’). Between enhance compliance with Regulation M others communicating a syndicate 1996 and 2004, the CPI, a general and assist the Commission and SRO covering bid to identify it as such measure for the change in the value of examiners in identifying patterns of wherever the bid is communicated. The the dollar rose approximately 20 abuse or policies and procedures that staff believes such identification is an percent.120 The adjustment of the are not reasonably designed to achieve essential first step to market-wide thresholds to reflect the current dollar compliance with the rule. identification of syndicate covering value should simply reset the thresholds 2. Costs bids. Contemporaneous disclosure of to the level of restrictiveness intended As discussed in the PRA, the the fact that stabilization-like activity is when Regulation M was adopted. By proposed amendments to Rules occurring is beneficial to the market and resetting the ADTV and public float 101(b)(7) would involve a collection of its participants, because it would allow 120 The change in CPI is the percentage change in information since those distribution market participants, i.e., both holders of Urban CPI measured from July 1996 to July 2004, participants, and their affiliated offered shares and potential investors in based on calculations performed by OEA. purchasers who rely on the Rule 101 the secondary market, to base their
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investment decisions and the resulting 2. Costs distribution participants that engaging transactions on all available The Commission preliminarily in such activity is prohibited and would information. This proposed amendment believes that including reference assist the Commission in its also would inhibit underwriters from securities in the 144A exception of Rule enforcement of the federal securities pricing offerings at higher levels than 104 would impose minimal costs since laws. otherwise may be obtainable in the it clarifies what securities are excepted 2. Costs absence of their syndicate covering and may require a one-time adjustment The Commission notes that the activity in the subsequent trading by training and modifying procedures conduct the proposed rule prohibits is market. by distribution participants and others. already prohibited by Regulation M or is The proposal to prohibit penalty bids F. Proposed Rule 106: Unlawful illegal under the antifraud and anti- would greatly reduce the pressure of a Practices in Connection With manipulation provisions of the federal penalty bid assessment by a managing Allocations of Offered Securities securities laws, as well as under SRO underwriter on a syndicate that, in turn rules, and so the new Rule 106 does not 1. Benefits may result in discriminatory and add any additional requirements. improper conduct by the syndicate We believe that proposed Rule 106 Rather, it expressly prohibits such member and its salespeople toward its would help prevent abuses in awarding conduct. A few distribution customers who may wish to sell a allocations of offered securities, participants, their affiliates and others security purchased in an offering. particularly IPOs, that were common in who did not already have adequate the late 1990’s and other ‘‘hot issue’’ 2. Costs policies and procedures may need to periods. Underwriters’’ or issuer’s make a one-time revision and undertake Proposed amendments to Rule 104 solicitations, inducements, demands for, corresponding training of employees. would require managing underwriters to or acceptance of, consideration in The Commission therefore believes that identify or designate syndicate covering addition to the stated offering price have the proposed rule would impose bids as such wherever communicated. several pernicious effects. These minimal costs, if any, on distribution For purposes of the PRA we estimated activities by distribution participants participants, issuers and their affiliated an annual burden of 5.5 hours per year can contribute to a false impression of purchasers and would support investor scarcity in the offered shares. This, in for managing underwriters to comply. protection. turn, can stimulate and distort the The Commission recognizes that SROs offering and aftermarket price of the VI. Consideration on Burden and and markets receiving designation of a offered security by creating the Promotion of Efficiency, Competition, syndicate bid from managing impression among investors that any and Capital Formation underwriters could incur some costs to unfulfilled demand for the offered Section 3(f) of the Exchange Act communicate this information to the shares may only be satisfied in the requires the Commission, whenever it market. The required disclosure and aftermarket.121 Moreover, such activities engages in rulemaking and must designation of a syndicate bid, however, create the impression that the consider or determine if an action is is similar to what is already required for underwriters have ‘‘rigged the game’’ necessary or appropriate in the public stabilizing transactions, so the and only the market participants who interest, to consider whether the action Commission anticipates that the means know they are expected, and are willing, would promote efficiency, competition, of communicating such information is to pay the additional consideration are and capital formation.122 In addition, already in place and operational. Issuers able to participate in IPOs. Additionally, Section 23(a)(2) of the Exchange Act may also incur one-time costs related to when underwriters allocate shares in requires the Commission, when making modifying the disclosure language in ‘‘hot offerings’’ to customers who agree rules under the Exchange Act, to the Plan of Distribution. to make aftermarket purchases in ‘‘cold consider the impact such rules would Although penalty bids are offerings,’’ the purchasers in the cold have on competition.123 Exchange Act infrequently used, due to their offerings are deceived as to the true Section 23(a)(2) prohibits the elimination managing underwriters and demand for that offering. The proposed Commission from adopting any rule that issuers will no longer have the option of rule would expressly preclude conduct would impose a burden on competition using them and may impose minimal that can operate as a fraud on not necessary or appropriate in costs upon them. Overall, the staff prospective and actual purchasers of an furtherance of the purposes of the believes the costs of complying with the offered security, particularly in IPOs. Exchange Act. Rule 104 proposals would be minimal Such conduct can undermine the The Commission preliminarily and the benefits from improved fundamental function of the securities believes that the proposed amendments transparency and removal of penalty markets as an independent pricing to Regulation M are intended to improve bids would outweigh these costs. mechanism and erode investor market efficiency by providing greater confidence in the securities offering clarity to all issuers, distribution E. Rule 104—Exception for Transactions process generally. Having an express participants and their affiliated in Rule 144A Securities prophylactic rule that prohibits the purchasers as to the scope of 1. Benefits conduct would emphasize to permissible activity for offerings; helping to ensure that those securities We believe that the proposed 121 See 1974 Rule 10b–20 Proposing Release excepted from the rules have no amendment to Rule 104(j)(2) to include (describing how broker inducements for allocating potential for manipulation; requiring offered shares: (1) Encourages participation in cold ‘‘reference securities’’ will make the offerings by investors with a view toward companies to maintain records of subparagraph consistent with the same immediate resale of the security; (2) obscures actual inadvertent violations of Regulation M exception under Rules 101(b)(10) and demand for the offering making an assessment by and to revise policies and procedures in 102(b)(7) for transactions in Rule 144A investors of true demand difficult thus artificially order to prevent violating rules; and affecting the offering price; and (3) stimulates securities, as was intended when demand for the offering and forces investors who Regulation M was adopted and will could not participate to buy in the aftermarket). 122 15 U.S.C. 78c(f). clarify the application of the exception. 1974 Rule 10b–20 Proposing Release, 39 FR at 7806. 123 15 U.S.C 78w(a)(2).
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providing greater transparency to the contemplated at Regulation M’s VIII. Initial Regulatory Flexibility market of actual syndicate covering adoption. By expressly providing for Analysis transactions. The proposed amendments valuation and election periods within The Commission has prepared an are intended to promote transparency the definition of the restricted period Initial Regulatory Flexibility Analysis and prevent manipulative activity in the the Commission would codify a long- (IRFA), in accordance with the offering process and aftermarket. standing interpretation and eliminate provisions of the Regulatory Flexibility The Commission preliminarily any confusion in these contexts. The Act (RFA)125 regarding the proposed believes that the proposed amendments new Rule 106 would expressly prohibit amendments to Regulation M. would promote capital formation since in a prophylactic rule conduct related to they seek to eliminate the abuses in the offerings that has been the subject of A. Reasons for the Proposed Action offering process and would promote a recent enforcement actions. Since the Based on our experience with the more even playing field for potential conduct covered by proposed Rule 106 operation of Regulation M, and to reflect investors and issuers alike. These is already prohibited under either market developments since the proposed amendments would promote Regulation M or antifraud and anti- Regulation’s adoption, we propose to investor confidence in the offering manipulation provisions of the federal revise Regulation M’s provisions. The process as well as in the market as a securities laws, the staff codifying the proposed amendments, including whole, which would foster capital illegality of such conduct within a amending the definition of ‘‘restricted formation. prophylactic rule imposes minimal The Commission has considered the period,’’ requiring recordkeeping for additional costs and would not impose proposed amendments in light of the reliance on the de minimis transaction a burden on competition. standards cited in Section 23(a)(2) and exception, updating the restricted believes preliminarily that, if adopted, We preliminarily believe that the period and ‘‘actively-traded’’ qualifying they would not likely impose any proposed amendments would promote thresholds, requiring identification of significant burden on competition not competition among distribution syndicate covering bids, prohibiting necessary or appropriate in furtherance participants as the amendments would penalty bids, and adopting a new rule of the Exchange Act. Specifically, the level the playing field by applying clear to prevent conditioning the award of proposed amendments if adopted, and uniform regulation concerning allocations of offered securities on the would require maintenance of separate conduct during an offering, and by receipt of consideration in addition to records under Rule 101(b)(7) and improving the transparency of syndicate the stated offering consideration, are identification or designation of covering bids in the aftermarket. designed to modernize Regulation M in syndicate covering bids under Rule 104. light of recent developments while The Commission requests comment providing clear guidelines to prevent As discussed above, distribution on whether the proposed amendments participants under Rule 17a–3 already manipulation of the markets. are expected to promote efficiency, If the proposed amendments were not make and keep records of all orders and competition, and capital formation. purchases and sales, including de adopted, the Regulation may not minimis bids and purchases, so the VII. Consideration of Impact on the appropriately address the manipulative Commission believes the additional Economy abuses that may occur prior to an IPO burden of keeping records separately and that interfere with the securities and for three years would be minimal. For purposes of the Small Business markets’ function as an independent With regard to Rule 104, the Regulatory Enforcement Fairness Act of pricing mechanism. Without adjusting Commission recognizes that SROs and 1996, or (SBREFA),124 we must advise the qualifying thresholds for the markets receiving the identification or the Office of Management and Budget as restricted periods and actively-traded designation of a syndicate bid from to whether the proposed amendments exceptions we could be exempting from managing underwriters may incur some constitute a ‘‘major’’ rule. Under the regulations restrictions securities costs to communicate this information. SBREFA, a rule is considered ‘‘major’’ that may be subject to manipulation. The required designation of a syndicate where, if adopted, it results or is likely Additionally, if the proposed bid, would be analogous to what is to result in: amendments to Rule 101(b)(7) were not already required for stabilizing • An annual effect on the economy of adopted, Commission and SRO transactions, so the Commission $100 million or more (either in the form examiners would be unable to identify anticipates that the means of of an increase or a decrease); possible patterns of abuse or improper communicating such information is policies and procedures that may be in • A major increase in costs or prices already in place and operational and place. As a result of not adopting the for consumers or individual industries; would require minimal costs to extend proposals contained in rules 104 and or such designation to include syndicate 106, investors may be precluded from covering bids. Additionally, in regard to • Significant adverse effect on receiving allocations, paying too high a the proposed definition of IPO and competition, investment, or innovation. price for a security or otherwise invest expansion of the restricted period for If a rule is ‘‘major,’’ its effectiveness in an offered security (or trade in the IPOs we would be expressly prohibiting will generally be delayed for 60 days aftermarket) with incomplete conduct which can create an pending Congressional review. We information as to the true demand for exaggerated perception to investors of request comment on the potential the security and the level or amount of scarcity of IPO stock and affect the impact of the proposed amendments on actual syndicate covering activity. pricing of the offering, both of which the economy on an annual basis. Similarly, if distribution participants undermine the market’s function as an Commenters are requested to provide were not required to disclose to the independent pricing mechanism. The empirical data and other factual support market and identify or designate when proposed amendments to Rules 100, for their view to the extent possible. a syndicate short covering bid is made, 101, and 102 concerning ADTV and prospective investors in, and holders of, public float values will restore the 124 Pub. L. 104–121, Title II, 110 Stat. 857 (1996) offered shares will not know the extent restricted period and actively-traded (codified in various sections of 5 U.S.C. and as a thresholds to the level originally note to 5 U.S.C. 601). 125 5 U.S.C. 603.
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of syndicate covering activity at the time 30, and 38, 15 U.S.C. 80a–23, 80a–29, professional skills will be necessary to it occurs and may make investment and 80a–37. achieve these new requirements. decisions without all the necessary D. Small Entities Subject to the Rule F. Duplicative, Overlapping or information about the offered security. Conflicting Federal Rules Additionally, if distribution participants Paragraph (a) of Rule 0–10 126 states were not prohibited from demanding that the term ‘‘small business’’ or ‘‘small The Commission believes that there additional consideration from investors organization,’’ when referring to issuers are no federal rules that duplicate, in order to obtain IPO allocations, we or affiliated purchasers, are those who overlap or conflict with, the proposed would be unable to prophylactically on the last day of its most recent fiscal amendments. prevent such fraudulent activity from year had total assets of $5,000,000 or G. Significant Alternatives occurring and only reach such activities less. As of 2003, the Commission through the antifraud and anti- estimates that there were approximately The RFA directs the Commission to manipulation provisions of the federal 3489 issuers that qualified as small consider significant alternatives that securities laws. Moreover, if we did not entities as defined above, and were would accomplish the stated objective, explicitly define IPOs and the restricted subject to Regulation M.127 Paragraph while minimizing any significant period for valuation and election (c)(1) of Rule 0–10 128 states that the adverse impact on small issuers and periods, we would not be able to term ‘‘small business’’ or ‘‘small broker-dealers. Pursuant to Section 3(a) provide certainty to the issuers, organization,’’ when referring to a of the RFA,130 the Commission distribution participants and others as broker-dealer, means a broker or dealer considered the following alternatives: to the exact application of the rules. that had total capital (net worth plus (1) The establishment of differing subordinated liabilities) of less than compliance or reporting requirements or B. Objectives $500,000 on the date in the prior fiscal timetables that take into account the The proposed amendments to year as of which its audited financial resources available to small entities; (2) Regulation M are designed to fulfill statements were prepared pursuant to the clarification, consolidation, or several objectives. First, the proposed § 240.17a–5(d); and is not affiliated with simplification of compliance and amendments seek to prevent any person (other than a natural person) reporting requirements under the Rule manipulation from occurring by that is not a small business or small for small entities; (3) the use of precluding certain activities by organization. As of 2003, the performance rather than design underwriters and other distribution Commission estimates that there were standards; and (4) an exemption from participants that can undermine the approximately 905 broker dealers, 33 of coverage of the Rule, or any part thereof, integrity and fairness of the offering which engaged in underwriting, that for small entities. process, particularly with respect to qualified as small entities as defined With respect to the proposed allocations of offered securities. Second, above, and were subject to Regulation amendments to Regulation M, the the proposal seeks to enhance the notice M.129 The Commission seeks comment Commission believes that in order to and disclosure of certain practices by on the number of issuers and broker- prevent manipulation and fraud in the distribution participants, such as dealers that were subject to Regulation offering process and trading markets, syndicate covering that may affect the M and the number of such issuers, uniform rules applicable to all market market price and trading of an offered broker-dealers and syndicate members participants (regardless of size) is security and to prohibit penalty bids. that are small entities. necessary. The Commission believes Third, the proposed amendments are E. Reporting, Recordkeeping and Other that the majority of entities to whom designed to prohibit activities that could Compliance Requirements Regulation M applies and the majority artificially influence the market for the of syndicate members who would be offered security, including, supporting The proposed amendments to affected by the proposed amendments the offering price by creating the Regulation M would impose certain are not small entities. Therefore, the exaggerated perception of scarcity of the reporting, recordkeeping and other establishment of different requirements offered security or creating the compliance requirements on broker- for small entities is not practicable, nor misleading appearance of active trading dealers and issuers who are small in the public interest and for the in the market for the security. The entities and engage in securities protection of investors to do so. In amendments are also intended to update offerings. Those distribution addition, the proposed amendments certain definitional and operational participants that are small entities who impose minimal additional costs or provisions in light of market rely on the de minimis transactions burdens so establishing different developments since the Regulation’s exception of Regulation M will now be compliance requirements or clarifying, adoption in 1996. subject to recordkeeping requirements. consolidating, or simplifying Also, if any broker-dealers that are small compliance or reporting requirements C. Legal Basis entities undertake syndicate covering for small entities would not be justified The amendments to Regulation M are transactions they will be subject to the in this context. With regard to the proposed pursuant to the authority set new identification and designation proposed amendments to Regulation M, forth under the Securities Act, 15 U.S.C. requirements. We do not believe, at this and clarification of the application of 77a et seq., particularly Section 7, 17(a), time, that any additional or specialized the regulation, small entities would not be specifically exempted, since all 19(a), 15 U.S.C. 77g, 77q(a), and 77s(a); 126 17 CFR 240.0–10(a). securities may be the subject of the Exchange Act, 15 U.S.C. 78a et seq., 127 This number is based on the total number of particularly Sections 2, 3, 9(a), 10, issuers’ 10–KSB filings for the fiscal year ending 9/ manipulation or other abuse the 11A(c), 12, 13, 14, 15(c), 15(g), 17(a), 30/04. amendments seek to prevent. Regulation 23(a), and 30, 15 U.S.C. 78b, 78c, 78i(a), 128 17 CFR 240.0–10(c)(1). M imposes performance standards 78j, 78k–1(c), 78l, 78m, 78n, 78o(c), 129 These numbers are based on OEA’s review of rather than design standards and would 2003 FOCUS Report filings reflecting registered require all entities to comply with the 78o(g), 78q(a), 78w(a), and 78dd–1; and broker dealers. This number does not include the Investment Company Act, 15 U.S.C. broker-dealers that are delinquent on FOCUS 80a–1 et seq., particularly Sections 23, Report filings. 130 5 U.S.C. 603(c).
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rule in order to ensure a proper 78j, 78k–1(c), 78l, 78m, 78n, 78o(c), § 229.508 [Amended] application of the rule. 78o(g), 78q(a), 78w(a), and 78dd–1; and 4. Section 229.508, paragraph (l)(1), the Investment Company Act of 1940, H. Solicitation of Comments second sentence, is amended by 15 U.S.C. 80a–1 et seq., particularly removing the phrase ‘‘penalty bids,’’. The Commission encourages written Sections 23, 30, and 38, 15 U.S.C. 80a– comments on matters discussed in the 23, 80a–29, and 80a–37. PART 230—GENERAL RULES AND IRFA. In particular, the Commission REGULATIONS, SECURITIES ACT OF requests comments on (1) the number of Text of Proposed Rule 1933 issuers and broker-dealers that were List of Subjects subject to Regulation M and the number 5. The authority citation for Part 230 of such issuers, broker-dealers and 17 CFR Part 228 continues to read in part as follows: syndicate members that are small Reporting and recordkeeping Authority: 15 U.S.C. 77b, 77c, 77d, 77f, entities; (2) the nature of any impact the requirements, Securities, Small 77g, 77h, 77j, 77r, 77s, 77z–3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n, 78o, 78t, 78w, 78ll(d), proposed amendments would have on businesses. small entities and empirical data 78mm, 79t, 80a–8, 80a–24, 80a–28, 80a–29, 80a–30, and 80a–37, unless otherwise noted. supporting the extent of the impact 17 CFR Parts 229, and 230 * * * * * (commenters are asked to describe the Reporting and recordkeeping nature of any impact and provide requirements, Securities. § 230.481 [Amended] empirical data supporting the extent of 17 CFR Part 240 6. Section 230.481, paragraph (d)(1), the impact); and (3) how to quantify the third sentence, is amended by removing number of small entities that would be Brokers, Reporting and recordkeeping the phrase ‘‘penalty bids,’’. affected by and/or how to quantify the requirements, Securities. impact of the proposed amendments. 17 CFR Part 242 PART 240—GENERAL RULES AND Such comments will be considered in REGULATIONS, SECURITIES the preparation of the Final Regulatory Brokers, Fraud, Reporting and EXCHANGE ACT OF 1934 Flexibility Analysis, if the proposed recordkeeping requirements, Securities. 7. The authority citation for Part 240 amendments are adopted, and will be For the reasons set forth in the continues to read in part as follows: placed in the same public file as preamble, the Commission proposes to comments on the proposed amendments amend Title 17, chapter II of the Code Authority: 15 U.S.C. 77c, 77d, 77g, 77j, themselves. As discussed above, for of Federal Regulations as follows: 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, purposes of SBREFA, the Commission is 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, also requesting information regarding PART 228—INTEGRATED 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, the potential impact of the proposed DISCLOSURE SYSTEM FOR SMALL 78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 79q, amendments on the economy on an BUSINESS ISSUERS 79t, 80a–20, 80a–23, 80a–29, 80a–37, 80b–3, annual basis. Commenters should 80b–4, 80b–11, and 7201 et seq.; and 18 U.S.C. 1350, unless otherwise noted. provide empirical data to support their 1. The authority citation for Part 228 views. continues to read in part as follows: * * * * * 8. Amend § 240.17a–2 by: IX. Statutory Basis Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, a. Removing the authority citation 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), The proposed amendments to Rule 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, following the section; 17a–2 would be adopted under the 77sss, 78l, 78m, 78n, 78o, 78u–5, 78w, 78ll, b. Removing the phrase ‘‘or imposes Exchange Act, 15 U.S.C. 78a et seq., and 78mm, 80a–8, 80a–29, 80a–30, 80a–37, 80b– a ‘penalty bid,’ as defined in § 240.100 particularly Sections 2, 3, 9(a)(6), 10(a), 11, and 7201 et seq.; and 18 U.S.C. 1350. of this chapter’’ in the introductory text 10(b), 13(e), 15(c), 17(a), and 23(a), 15 * * * * * of paragraph (a); U.S.C. 78b, 78c, 78i(a)(6), 78j(a), 78j(b), c. Revising the introductory text of 78m(e), 78o(c), 78q(a), and 78w(a). The § 228.508 [Amended] paragraph (c); proposed amendments to Item 508(l)(1) 2. Section 228.508, paragraph (j)(1), d. Removing the phrase ‘‘or a penalty of Regulation S–K and Item 508(j)(1) of second sentence, is amended by bid has been imposed’’ in paragraph Regulation S–B and Rule 481 would be removing the phrase ‘‘penalty bids,’’. (c)(1)(i); e. Removing the phrase ‘‘, and adopted under the Securities Act, 15 whether any penalties were assessed’’ in U.S.C. 77a et seq., particularly Sections PART 229—STANDARD paragraph (c)(1)(ii); 6, 7, 8, 10, and 19(a), 15 U.S.C. 77f, 77g, INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES ACT OF 1933, f. Adding the word ‘‘and’’ at the end 77h, 77j. and 77s(a); the Exchange Act, of paragraph (c)(i)(iii); 15 U.S.C. 78a et seq., particularly SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND g. Removing the ‘‘; and’’ and in its Sections 3, 4, 10, 12, 13, 14, 15, 16 and place adding a period at the end of 23; 15 U.S.C. 78c, 78d, 78j, 78l, 78m, CONSERVATION ACT OF 1975— REGULATION S–K paragraph (c)(1)(iv); and 78n, 78o, 78p, and 78w; and the h. Removing paragraph (c)(i)(v). Investment Company Act of 1940, 15 3. The authority citation for Part 229 The revision reads as follows: U.S.C. 80a–1 et seq., particularly continues to read in part as follows: Sections 8 and 38(a), 15 U.S.C. 80a–8 § 240.17a–2 Recordkeeping requirements and 80a–37(a). Rules 100, 101, 102, 104, Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, relating to stabilizing activities. 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), and 106 of Regulation M would be * * * * * 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, (c) Records relating to stabilizing and adopted under the Securities Act, 15 77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, U.S.C. 77a et seq., particularly Sections 78o, 78u–5, 78w, 78ll, 78mm, 79e, 79j, 79n, syndicate covering transactions required 7, 17(a), 19(a), 15 U.S.C. 77g, 77q(a), and 79t, 80a–8, 80a–9, 80a–20, 80a–29, 80a–30, to be maintained by manager. Any 77s(a); the Exchange Act, 15 U.S.C. 78a 80a–31(c), 80a–37, 80a–38(a), 80a–39, 80b– person subject to this section who acts et seq., particularly Sections 2, 3, 9(a), 11, and 7201 et seq.; and 18 U.S.C. 1350, as a manager and stabilizes or effects 10, 11A(c), 12, 13, 14, 15(c), 15(g), 17(a), unless otherwise noted. syndicate covering transactions shall: 23(a), and 30, 15 U.S.C. 78b, 78c, 78i(a), * * * * * * * * * *
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9. Section 240.17a–4 is amended by determination of the offering price or § 242.101 Activities by distribution adding paragraph (b)(13) to read as such time that a person becomes a participants. follows: distribution participant, and ending * * * * * upon such person’s completion of (b)(7) De minimis transactions. § 240.17a–4 Records to be preserved by participation in the distribution. Purchases during the restricted period, certain exchange members, broker and dealers. (2) For any security with an ADTV other than by a passive market maker, value of less than $120,000 of an issuer that total less than 2% of the ADTV of * * * * * whose common equity securities have a the security being purchased, or (b) * * * unaccepted bids: Provided, however, (13) The record(s) required to be made public float value of less than $30 million, the period beginning on the that the person making such bid or pursuant to § 242.101(b)(7) of this purchase has maintained and enforces chapter. later of five business days prior to the determination of the offering price or written policies and procedures * * * * * such time that a person becomes a designed to achieve compliance with other provisions of this section. Any PART 242—REGULATIONS M, SHO, distribution participant, and ending person relying on this exception shall ATS, AND AC AND CUSTOMER upon such person’s completion of participation in the distribution. create a separate record specifying: MARGIN REQUIREMENTS FOR (i) The security that is the subject of SECURITY FUTURES (3) In the case of a distribution involving a merger, acquisition, or the relevant distribution; 10. The authority citation for Part 242 exchange offer: (ii) The day the restricted period is revised to read as follows: (i) The day proxy solicitation or commenced; (iii) The ADTV; offering materials are first disseminated Authority: 15 U.S.C. 77g, 77q(a), 77s(a), (iv) The bid or purchase that occurred 78b, 78c, 78g(c)(2), 78i(a), 78j, 78k–1(c), 78l, to security holders and ending upon the during the restricted period, including 78m, 78n, 78o(b), 78o(c), 78o(g), 78q(a), completion of the distribution; time, price, quantity, and market; 78q(b), 78q(h), 78w(a), 78dd–1, 78mm, 80a– (ii) The period one or five business 23, 80a–29, and 80a–37. (v) The individual who made such bid days prior to the commencement of any or purchase and the system used to 11. Section 242.100 is amended by: valuation period and for the duration of make such bid or purchase; a. Revising the phrase ‘‘(§§ 242.100— such period (refer to paragraphs (1) and (vi) How and when such bid or 242.105 of this chapter)’’ to read (2) of this definition to determine if one purchase was discovered; ‘‘(§§ 242.100 through 242.106)’’ in or five business days is applicable); and (vii) The policies and procedures paragraph (a); (iii) The period one or five business designed to achieve compliance with b. Revising the phrase ‘‘(§§ 242.100 days prior to the commencement of any this section in effect at the time of such through 242.105 of this chapter)’’ to election period and for the duration of bid or purchase; read ‘‘(§§ 242.100 through 242.106)’’ in such period (refer to paragraphs (1) and (viii) The review of the policies and paragraph (b); (2) of this definition to determine if one procedures performed following the c. Adding the following definitions in or five business days is applicable). discovery of such bid or purchase; and alphabetical order: Election period; (4) In the case of a distribution (ix) Any modifications made to those Initial public offering; and Valuation involving an IPO, the earlier of: policies and procedures. A broker or period; and (i) The period beginning at the time dealer shall preserve the record d. Revising the definition of when the issuer reaches an specified in this paragraph in Restricted period. understanding with the broker-dealer accordance with § 240.17a–4(b)(13) of The revision and additions read as that is to act as an underwriter, or such this chapter; or follows. time that a person becomes a * * * * * § 242.100 Preliminary note; definitions. distribution participant, and ending 13. Amend § 242.102, paragraph * * * * * upon the issuer’s or distribution (d)(1), by revising the phrases ‘‘$1 Election period means any period participant’s completion of participation million’’ and ‘‘$150 million’’ to read during which shareholders have the in the distribution; or ‘‘$1.2 million’’ and ‘‘$180 million’’ right to elect among various forms of (ii) The period beginning at the time respectively. consideration offered in a distribution. the registration statement is filed with 14. Amend § 242.103, paragraph (b)(7), by revising the phrase * * * * * the Commission or other offering Initial public offering (IPO) means: document is first circulated to potential ‘‘§§ 228.502, 228.508, 229.502, and (1) An issuer’s first offering of a investors, or such time that a person 229.508’’ to read ‘‘§§ 228.508 and security to the public in the United becomes a distribution participant, and 229.508’’. States, and ending upon the issuer’s or distribution 15. Amend § 242.104 by: (2) If prior thereto the issuer’s equity participant’s completion of participation a. Revising paragraphs (a), (h)(2), and securities do not have a public float in the distribution. the introductory text of paragraph (j)(2); value, an issuer’s first offering of an * * * * * and b. In paragraph (h)(3) revise the equity security to the public in the Valuation period means any period phrase ‘‘Item 502(d) of Regulation S–B United States. during which the market price of the (§ 228.502(d) of this chapter) or Item offered security is a factor in * * * * * 502(d) of Regulation S–K (§ 229.502(d) determining the consideration to be Restricted period means the period of this chapter)’’ to read ‘‘§ 230.481(d) of paid in the distribution. beginning: this chapter’’. (1) For any security with an ADTV 12. Amend § 242.101 by revising The revisions read as follows. value of $120,000 or more of an issuer paragraph (b)(7) and in paragraph (c)(1) whose common equity securities have a by revising the phrases ‘‘$1 million’’ § 242.104 Stabilizing and other activities in public float value of $30 million or and ‘‘$150 million’’ to read ‘‘$1.2 connection with an offering. more, the period beginning on the later million’’ and ‘‘$180 million’’ (a) Unlawful activity. It shall be of one business day prior to the respectively. unlawful for any person, directly or
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indirectly, to stabilize or to effect any which the syndicate covering stated in the registration statement filed syndicate covering transaction in transaction is effected. under the Securities Act of 1933 (15 connection with an offering of any * * * * * U.S.C. 77a et seq.) or applicable offering security, in contravention of the (j) * * * document for the offer and sale of such provisions of this section. No stabilizing (2) Transactions of Rule 144A offered security. shall be effected at a price that the securities. Transactions in securities (b) Exemptive authority. Upon written person stabilizing knows or has reason eligible for resale under application or upon its own motion, the to know is in contravention of this § 230.144A(d)(3) of this chapter, or any Commission may grant an exemption section, or is the result of activity that reference security, if such securities are from the provisions of this section, is fraudulent, manipulative, or offered or sold in the United States either unconditionally or on specified deceptive under the securities laws, or solely to: any rule or regulation thereunder. It terms and conditions, to any person or * * * * * class of persons, to any transaction or shall be unlawful for any person to 16. Add § 242.106 to read as follows: impose or assess a penalty bid in class of transactions, or to any security connection with an offering. § 242.106 Allocating offered securities. or class of securities to the extent that such exemption is necessary or * * * * * (a) Unlawful activity. It shall be appropriate, in the public interest, and (h) * * * unlawful for a distribution participant, (2) Any person communicating a bid issuer or their affiliated purchasers, is consistent with the protection of that is for the purpose of effecting a directly or indirectly, acting either alone investors. syndicate covering transaction shall: or in concert with another person, to Dated: December 9, 2004. (i) Identify or designate the bid as attempt to induce, induce, solicit, By the Commission. such wherever it is communicated; and require, or accept from a potential (ii) Provide prior notice to the self- purchaser of an offered security in J. Lynn Taylor, regulatory organization with direct connection with an allocation of the Assistant Secretary. authority over the principal market in offered security, any consideration for [FR Doc. 04–27434 Filed 12–16–04; 8:45 am] the United Sates for the security for such offered security in addition to that BILLING CODE 8010–01–P
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Part IV
Department of Labor Employee Benefits Security Administration
29 CFR Part 2590 Mental Health Parity; Final Rule
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DEPARTMENT OF LABOR dollar limits on mental health benefits This legislation further extended with dollar limits on medical/surgical MHPA’s original sunset date under the Employee Benefits Security benefits. Provisions implementing Code to December 31, 2003. Administration MHPA were later added to the Internal On September 27, 2002, the Revenue Code of 1986 (Code) under the Department of Labor issued an interim 29 CFR Part 2590 Taxpayer Relief Act of 1997 (Pub. L. final amendment for mental health RIN 1210–AA62 105–34, 111 Stat. 1080). parity in the Federal Register (67 FR The provisions of MHPA, as originally 60859). The interim final amendment Mental Health Parity enacted, are set forth in Part 7 of included the new statutory sunset date Subtitle B of Title I of ERISA, Chapter under H.R. 3061, so that MHPA’s AGENCY: Employee Benefits Security 100 of Subtitle K of the Code, and Title provisions would apply to benefits for Administration, Department of Labor. 1 XXVII of the PHS Act. The MHPA services furnished before December 31, ACTION: Interim final amendment to provisions in ERISA generally apply to 2002. The Department made the regulation. all group health plans other than effective date of this interim final governmental plans, church plans, and amendment to the regulations SUMMARY: This document contains an certain other plans. These provisions September 30, 2001. interim final amendment to modify the also apply to health insurance issuers sunset date of interim final regulations that offer health insurance coverage in On December 2, 2002, President Bush under the Mental Health Parity Act connection with such group health signed H.R. 5716, the Mental Health (MHPA) to be consistent with legislation plans. Generally, the Secretary of Labor Parity Reauthorization Act of 2002 (Pub. passed during the 108th Congress. enforces the MHPA provisions in L. 107–313, 116 Stat. 2457), an DATES: Effective date. The interim final ERISA, except that no enforcement amendment to section 712 of ERISA and amendment is effective December 31, action may be taken by the Secretary Section 2705 of the PHS Act. This 2004. against issuers. However, individuals legislation further extended MHPA’s Applicability dates. The requirements may generally pursue actions against original sunset date under ERISA and of the interim final amendment apply to issuers under ERISA and, in some the PHS Act to December 31, 2003. On group health plans and health insurance circumstances, under state law. April 14, 2003, the Department of Labor issued an interim final amendment for issuers offering health insurance B. Overview of MHPA coverage in connection with a group mental health parity in the Federal health plan beginning December 31, The MHPA provisions set forth in Register (68 FR 18048). The interim 2004. The MHPA interim final section 712 of ERISA apply to a group final amendment included the new amendment extends the sunset date health plan (or health insurance statutory sunset date under H.R. 5716, from December 31, 2004, to December coverage offered by issuers in so that MHPA’s provisions would apply 31, 2005. Pursuant to the extended connection with a group health plan) to benefits for services furnished before sunset date, MHPA requirements apply that provides both medical/surgical December 31, 2003. to benefits for services furnished before benefits and mental health benefits. On December 19, 2003, President December 31, 2005. MHPA’s original text included a sunset Bush signed S. 1929, the Mental Health provision specifying that MHPA’s FOR FURTHER INFORMATION CONTACT: Parity Reauthorization Act of 2003 (Pub. provisions applied to benefits for L. 108–197, 117 Stat. 2998), an Mark Connor, Employee Benefits services furnished before September 30, Security Administration, Department of amendment to section 712 of ERISA and 2001. On December 22, 1997, the Section 2705 of the PHS Act. This Labor, at (202) 693–8335. Departments of Labor, the Treasury, and Customer Service Information: legislation further extended MHPA’s Health and Human Services issued original sunset date under ERISA and Individuals interested in obtaining interim final regulations under MHPA additional information on the Mental the PHS Act to December 31, 2004. On in the Federal Register (62 FR 66931). January 26, 2004, the Department of Health Parity Act and other health care The interim final regulations included laws may request copies of Department Labor issued an interim final this statutory sunset date. amendment for mental health parity in of Labor publications concerning On January 10, 2002, President Bush the Federal Register (69 FR 3815). The changes in health care law by calling the signed H.R. 3061 (Pub. L. 107–116, 115 final rule included the new statutory EBSA Toll-Free Hotline at 1–866–444– Stat. 2177), the 2002 Appropriations Act EBSA (3272), or access the publications for the Departments of Labor, Health sunset date under S. 1929, so that on-line at http://www.dol.gov/ebsa, the and Human Services, and Education. MHPA’s provisions would apply to Department of Labor’s Web site. This legislation extended MHPA’s benefits for services furnished before Information on the Mental Health Parity original sunset date under ERISA, the December 31, 2004. Act and other health care laws is also Code, and the PHS Act, so that MHPA’s On October 4, 2004, President Bush available on the Department of Labor’s provisions would apply to benefits for signed H.R. 1308, the Working Families interactive Web pages, Health Elaws services furnished before December 31, Tax Relief Act of 2004 (Pub. L. 108–311, (http://www.dol.gov/elaws/ebsa/health). 2002. 118 Stat. 1166), an amendment to SUPPLEMENTARY INFORMATION: On March 9, 2002, President Bush section 712 of ERISA, Section 9812 of signed H.R. 3090, the Job Creation and the Code, and Section 2705 of the PHS A. Background Worker Assistance Act of 2002 (Pub. L. Act. This legislation further extends The Mental Health Parity Act of 1996 107–147, 116 Stat. 21), that included an MHPA’s original sunset date under (MHPA) was enacted on September 26, amendment to section 9812 of the Code ERISA, the Code, and the PHS Act to 1996 (Pub. L. 104–204, 110 Stat. 2944). (the mental health parity provisions). December 31, 2005. Like MHPA, this MHPA amended the Employee amendment to MHPA applies to a group Retirement Income Security Act of 1974 1 Part 7 of Subtitle of Title I of ERISA, Chapter health plan (or health insurance 100 of Subtitle K of the Code, and Title XXVII of coverage offered by issuers in (ERISA) and the Public Health Service the PHS Act were added by the Health Insurance Act (PHS Act) to provide for parity in Portability and Accountability Act of 1996 (HIPAA), connection with a group health plan) the application of annual and lifetime Public Law 104–191. that provides both medical/surgical
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benefits and mental health benefits.2 As action’’ within the meaning of the 1996 (5 U.S.C. 801 et seq.) (SBREFA), a result of this statutory amendment, Executive Order. This action is an and has been transmitted to Congress and to assist employers, plan sponsors, amendment to the interim final and the Comptroller General for review. health insurance issuers, and workers, regulations and merely extends the This amendment to the interim final the Department of Labor has developed regulatory sunset date to conform to the regulations is not a major rule, as that this amendment of the interim final new statutory sunset date added by H.R. term is defined by 5 U.S.C. 804. regulations, in consultation with the 1308. Departments of the Treasury and Health H. Federalism Statement D. Paperwork Reduction Act and Human Services, conforming the Executive Order 13132 (August 4, The information collection provisions regulatory sunset date to the new 1999) outlines fundamental principles of MHPA incorporated in the statutory sunset date. The Department is of federalism and requires the Department’s interim final rules are also making conforming changes adherence to specific criteria by federal currently approved under OMB control extending the duration of the increased agencies in the process of their numbers 1210–0105 (Notice to cost exemption to be consistent with the formulation and implementation of Participants and Beneficiaries and new sunset date. policies that have substantial direct Since the extension of this sunset date Federal Government of Electing One effects on the states, the relationship is not discretionary, this amendment to Percent Increased Cost Exemption), and between the states, the relationship the MHPA regulations is promulgated 1210–0106 (Calculation and Disclosure between the national government and on an interim final basis pursuant to of Documentation of Eligibility for the states, or on the distribution of Section 734 of ERISA. This interim final Exemption). Because this action does power and responsibilities among the amendment is also promulgated not change the approved information various levels of government. This pursuant to Section 553(d)(3) of the collection provisions, no submission for interim final amendment does not have Administrative Procedure Act, allowing OMB approval is being made in federalism implications as it only for regulations to become effective connection with this interim final conforms the regulatory sunset date to immediately for good cause. amendment. However, because OMB’s the new statutory sunset date added by approval for the information collection C. Executive Order 12866 H.R. 1308. requests approved under control Under Executive Order 12866, the numbers 1210–0105 and 1210–0106 List of Subjects in 29 CFR Part 2590 Department must determine whether a were scheduled to expire on November regulatory action is ‘‘significant’’ and 30, 2004 and October 31, 2004, Continuation coverage, Disclosure, therefore subject to the requirements of respectively, the Department requested Employee benefit plans, Group health the Executive Order and subject to public comment on their proposed plans, Health care, Health insurance, review by the Office of Management and renewal, and has submitted requests to Medical child support, Reporting and Budget (OMB). Under section 3(f), the OMB for continuing approval. OMB is recordkeeping requirements. order defines a ‘‘significant regulatory currently reviewing those requests. action’’ as an action that is likely to Employee Benefits Security result in a rule: (1) Having an annual E. Regulatory Flexibility Act Administration effect on the economy of $100 million The Regulatory Flexibility Act (5 I 29 CFR part 2590 is amended as or more, or adversely and materially U.S.C. 601 et seq.) (RFA) imposes follows: affecting a sector of the economy, certain requirements with respect to productivity, competition, jobs, the federal rules that are subject to the PART 2590—RULES AND environment, public health or safety, or notice and comment requirements of state, local or tribal governments or REGULATIONS FOR GROUP HEALTH section 553(b) of the Administrative PLANS communities (also referred to as Procedure Act (5 U.S.C. 551 et seq.). ‘‘economically significant’’); (2) creating Because this amendment to the interim I 1. The authority for part 2590 is serious inconsistency or otherwise final regulations is being published on revised to read as follows: interfering with an action taken or an interim final basis, without prior planned by another agency; (3) notice and a period for comment, the Authority: 29 U.S.C. 1027, 1059, 1135, materially altering the budgetary Regulatory Flexibility Act does not 1161–1168, 1169, 1181–1183, 1181 note, impacts of entitlement grants, user fees, apply. 1185, 1185a, 1185b, 1191, 1191a, 1191b, and or loan programs or the rights and 1191c, sec. 101(g), Pub. L. 104–191, 101 Stat. obligations of recipients thereof; or (4) F. Unfunded Mandates Reform Act 1936; sec. 401(b), Pub. L. 105–200, 112 Stat. raising novel legal or policy issues For purposes of the Unfunded 645 (42 U.S.C. 651 note); Secretary of Labor’s arising out of legal mandates, the Mandates Reform Act of 1995 (Pub. L. Order 1–2003, 68 FR 5374 (Feb. 3, 2003). President’s priorities, or the principles 104–4) (UMRA), as well as Executive § 2590.712 [Amended] set forth in the Executive Order. Order 12875, this interim final Pursuant to the terms of the Executive amendment does not include any I 2. Amend § 2590.712(f)(1), (g)(2), and Order, it has been determined that this federal mandate that may result in (i) by removing the date ‘‘December 31, action is not a ‘‘significant regulatory expenditures by state, local, or tribal 2004’’ and add in its place the date governments, and does not include ‘‘December 31, 2005’’ wherever it 2 The parity requirements under MHPA, the mandates that may impose an annual appears in these paragraphs. interim regulations, and the amendment to the interim regulations do not apply to any group expenditure of $100 million or more on Signed in Washington, DC this 10th day of health plan (or health insurance coverage offered in the private sector. December, 2004. connection with a group health plan) for any plan year of a small employer. The term ‘‘small G. Congressional Review Act Ann L. Combs, employer’’ is defined as an employer who This interim final amendment is Assistant Secretary, Employee Benefits employed an average of at least 2 but not more than Security Administration. 50 employees on business days during the subject to the Congressional Review Act preceding calendar year and who employs at least provisions of the Small Business [FR Doc. 04–27531 Filed 12–16–04; 8:45 am] 2 employees on the first day of the plan year. Regulatory Enforcement Fairness Act of BILLING CODE 4510–29–P
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Part V
Department of Housing and Urban Development 24 CFR Part 202 Revisions to FHA Credit Watch Termination Initiative; Interim Rule
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DEPARTMENT OF HOUSING AND Department of Housing and Urban of FHA requirements under 24 CFR part URBAN DEVELOPMENT Development, 451 Seventh Street, SW, 25. The regulations for the Credit Watch Washington, DC 20410–0500. Electronic Termination Initiative are contained in 24 CFR Part 202 comments may be submitted through 24 CFR 202.3. either: The April 1, 2003, rule proposed to [Docket No. FR–4625–I–02; HUD–2004– • 0014] The Federal eRulemaking Portal at make various amendments to the http://www.regulations.gov; or regulations for the Credit Watch RIN 2502–AH60 • The HUD electronic Web site at Termination Initiative. Specifically, the http://www.epa.gov/feddocket. Follow April 1, 2003, rule proposed to: (1) Revisions to FHA Credit Watch the link entitled ‘‘View Open HUD Establish a fully computerized Credit Termination Initiative Dockets.’’ Commenters should follow Watch status notification process AGENCY: Office of the Assistant the instructions provided on that site to through use of the FHA Neighborhood Secretary for Housing—Federal Housing submit comments electronically. Watch Early Warning System; (2) Commissioner, HUD. Facsimile (FAX) comments are not remove the regulatory ‘‘cap’’ on the ACTION: Interim rule. acceptable. In all cases, communications default and claim rate for placing a must refer to the docket number and mortgagee on Credit Watch status; (3) SUMMARY: On April 1, 2003, HUD title. All comments and prohibit a mortgagee that has received a published a proposed rule to amend the communications submitted will be notice of proposed termination from regulations for the Federal Housing available for public inspection and establishing a new branch in the lending Administration (FHA) Credit Watch copying between 8 a.m. and 5 p.m. area covered by the proposed Termination Initiative. Specifically, weekdays at the above address. Copies termination; (4) provide that the default HUD proposed to provide for a fully are also available for inspection and and claim thresholds underlying the computerized Credit Watch status downloading at http://www.epa.gov/ Credit Watch Termination Initiative notification process through use of the feddocket. apply to both underwriting and originating mortgagees; (5) codify the FHA Neighborhood Watch Early FOR FURTHER INFORMATION CONTACT: definition of ‘‘underserved area’’ that is Warning System; remove the regulatory Phillip Murray, Director, Office of currently used under the Credit Watch ‘‘cap’’ on the default and claim rates for Lender Activities and Program placing a mortgagee on Credit Watch Termination Initiative; (6) provide that Compliance, Office of Housing, the date of mortgage origination will be status; prohibit a mortgagee that has Department of Housing and Urban received a notice of proposed considered to be the date the loan Development, 451 Seventh Street, SW, transaction commences amortization, termination from establishing a new Room B–133, Washington, DC 20410– branch in the lending area covered by rather than the date of endorsement for 8000; telephone (202) 708–1515 (this is FHA mortgage insurance; (7) specify the the proposed termination; provide that not a toll-free number). Persons with the default and claim thresholds timeframes for the informal conference hearing or speech impairments may that may be requested by a mortgagee underlying the Credit Watch access this number via TTY by calling Termination Initiative apply to both prior to termination; and (8) describe the toll-free Federal Information Relay the procedures a terminated mortgagee underwriting and originating Service at 1–800–877–8339. mortgagees; codify the definition of must follow to have its origination SUPPLEMENTARY INFORMATION: ‘‘underserved area’’ that is currently approval agreement reinstated. used under the Credit Watch I. Background—HUD’s April 1, 2003, The proposed regulatory changes Termination Initiative; provide that the Proposed Rule were designed to improve the Credit Watch Termination Initiative, thereby date of mortgage origination will be On April 1, 2003 (68 FR 15906), HUD considered to be the date the loan strengthening HUD’s capacity to published a proposed rule to amend the safeguard the FHA mortgage insurance transaction commences amortization, regulations for the Federal Housing rather than the date of endorsement for fund. The preamble to the April 1, 2003, Administration (FHA) Credit Watch proposed rule provides additional FHA mortgage insurance; specify the Termination Initiative. Through the timeframes for the informal conference details regarding the proposed Credit Watch Termination Initiative, regulatory changes to 24 CFR 202.3. that may be requested by a mortgagee FHA systematically reviews the early prior to termination; and describe the default and claim rates of mortgagees II. Significant Differences Between this procedures a terminated mortgagee must that have been approved to participate Interim Rule and the April 1, 2003, follow to have its origination approval in the FHA single family mortgage Proposed Rule agreement reinstated.This interim rule insurance programs. Mortgagees with This interim rule follows publication follows publication of the April 1, 2003, excessive default and claim rates are of the April 1, 2003, proposed rule, and proposed rule, and takes into considered to be on Credit Watch status takes into consideration the public consideration the public comments on and, in cases of more severe comments received on the proposed the proposed rule. In addition, this rule performance deficiencies, HUD may rule. The changes made to the April 1, further clarifies the applicability of the terminate the mortgagee’s loan 2003, proposed rule in response to Credit Watch Termination Initiative to origination approval authority. Credit public comment are as follows: underwriting mortgagees, and requests Watch status constitutes a warning to a 1. Clarification of applicability to comments on the regulatory provisions mortgagee that its default and claim underwriting mortgagees. In response to regarding underwriting mortgagees. rates are in excess of permissible levels, several comments, this interim rule DATES: Effective Date: January 18, 2005. and that failure to achieve improvement clarifies the applicability of the Credit Comments Due Date: February 15, may lead to the termination of its Watch Termination Initiative to 2005. origination approval agreement. The underwriting mortgagees. The April 1, ADDRESSES: Interested persons are termination of a mortgagee’s origination 2003, proposed rule made clear that invited to submit comments regarding approval agreement is separate and underwriting mortgagees would be this rule to the Regulations Division, apart from any action taken by HUD’s included within the scope of the Credit Office of General Counsel, Room 10276, Mortgagee Review Board for violations Watch Termination Initiative. However,
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HUD agrees that additional clarification April 1, 2003, proposed rule and, B. Comments Regarding Removal of the would be helpful regarding the effects of therefore, have already been the subject Regulatory ‘‘Cap’’ on the Credit Watch Credit Watch Termination evaluations of public comments. A discussion of the Default and Claim Rate on the ability of mortgagees with direct significant issues raised by the public Comment: Support for removal of endorsement approval to underwrite commenters on the April 1, 2003, regulatory cap. Two commenters wrote FHA-insured mortgage loans. proposed rule and HUD’s responses to that HUD’s clarification that a lender Accordingly, HUD has revised the rule these comments is located in section III will be considered to be on Credit to provide for separate regulatory of this preamble. Watch status if its rate of defaults and language that specifically addresses 2. Removal of last sentence of claims exceeds 150 percent of the underwriting mortgagees. For example, proposed § 202.3(c)(2)(ii). For purposes normal rate will strengthen the Credit the rule now clarifies that the Secretary of clarity, and at the request of a public Watch Termination Initiative. may terminate an underwriting commenter, HUD has removed the last HUD response. HUD appreciates the mortgagee’s direct endorsement sentence of proposed § 202.3(c)(2)(ii), support expressed by the commenters. approval under 24 CFR part 203 to which provided that a ‘‘poor performing HUD has adopted the proposed underwrite FHA-insured mortgages if mortgagee on Credit Watch status is in regulatory amendment without change. the mortgagee has a rate of defaults and danger of having its origination The amendment will strengthen the claims on insured mortgages approval agreement terminated by Credit Watch Termination Initiative by underwritten in an area that exceeds the HUD.’’ eliminating the need for regulatory established Credit Watch Termination waivers to authorize placement of thresholds. The termination of a 3. Other clarifying changes. HUD has mortgagees with default and claims mortgagee’s direct endorsement also taken the opportunity afforded by rates greater than 200 percent on Credit approval under the Credit Watch this interim rule to make several non- Watch status. Termination Initiative is separate and substantive changes to enhance the Comment: HUD should clarify the apart from the termination of a clarity of the Credit Watch regulations threshold for termination of a mortagee’s direct endorsement approval (for example, revising the headings of mortgagee’s origination approval under 24 CFR part 203. certain paragraphs). The new regulatory language does not agreement. One commenter requested III. Discussion of the Public Comments that the rule provide clarification alter the substance of the proposals on the April 1, 2003, Proposed Rule contained in the April 1, 2003, proposed regarding the threshold claim and default rate that may trigger termination rule but, rather, provides greater clarity The public comment period for the of a mortgagee’s origination approval on how the performance of proposed rule closed on June 1, 2003. agreement. The commenter was underwriting mortgagees would be HUD received four public comments on uncertain about the impact of the last subject to evaluation under the Credit the proposed rule. Comments were sentence of proposed § 202.3(c)(2)(ii), Watch Termination Initiative. Although received from a city, a national which provides that a ‘‘poor performing the language of the proposed rule did association representing mortgage mortgagee on Credit Watch status is in not explicitly reference termination of a bankers, a mortgage lender, and a danger of having its origination mortgagee’s direct endorsement national community development approval agreement terminated by approval, the preamble to the proposed organization. The comments were HUD.’’ The commenter wrote that this rule made clear that the regulatory generally supportive of the proposed sentence implies that the default and amendments were designed to rule, but also requested clarification of claim ratio required for placement on ‘‘emphasize HUD’s authority to some of the proposed regulatory Credit Watch status (150%) would terminate the ability of a mortgagee to changes and offered suggestions for suffice to terminate a mortgagee’s originate or underwrite FHA-insured improving the rule. This section of the origination approval agreement. The single family mortgages where the preamble presents a summary of the commenter wrote that this would mortgagee has demonstrated an significant issues raised by the public contradict both the language of unacceptably high default and claim commenters on the April 1, 2003, § 202.3(c)(2)(iii) and the policy stated in rate’’ (see 68 FR 15906, at 15907, third proposed rule, and HUD’s responses to Mortgagee Letter 2002–20 that a column). The ability of a mortgagee to these issues. underwrite FHA-insured mortgages is mortgagee’s origination approval provided by its direct endorsement A. Comments Regarding Use of the FHA agreement may be terminated only if its approval and, therefore, the termination Neighborhood Watch Early Warning rate of default and claims exceeds 200% of a mortgagee’s direct endorsement System of the normal rate and the national approval was contemplated by the default and claim rate for insured Comment: Support for electronic proposed rule. mortgages. The commenter wrote that Because the new regulatory language notification of Credit Watch status. The ‘‘the current 200% termination was not part of the April 1, 2003, commenter wrote that ‘‘[h]aving the threshold is sufficient for FHA to proposed rule, HUD is issuing these Credit Watch notification information monitor lenders with excessive claim changes on an interim basis and available online would enhance [the and default rates,’’ and suggested that soliciting public comment for a period commenter’s] ability to monitor its own HUD remove the last sentence of of 60 days. HUD will issue a follow-up and its FHA correspondents’ production proposed § 202.3(c)(2)(ii). final rule addressing the significant on an ongoing, live basis.’’ HUD response. For purposes of issues raised by the public commenters HUD response. HUD appreciates the clarity, HUD has adopted the on the new language concerning the commenter’s support. The interim rule commenter’s suggestion and removed applicability of the Credit Watch adopts these provisions of the proposed the last sentence of proposed Termination Initiative to underwriting rule without change. HUD agrees that a § 202.3(c)(2)(ii). The proposed mortgagees. HUD will not consider fully computerized Credit Watch regulatory language was not intended to public comments submitted in response notification system provides a imply that a mortgagee placed on Credit to other provisions of this interim rule. streamlined and more effective method Watch status with a default and claim These provisions were contained in the of monitoring mortgagee performance. rate of less than 200% of the normal rate
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is subject to termination. As the Comment: Objection to the mandatory changes to internal procedures and to commenter notes, the regulations are prohibition of new branch offices in the educate their FHA correspondents of the clear that a mortgagee is subject to lending area covered by a proposed pending changes. The commenter termination only if its rate of defaults termination. One commenter wrote that suggested that the thresholds be and claims exceeds 200 percent of the before imposing such a prohibition, ‘‘phased-in’’ in a manner similar to that normal rate and also exceeds the HUD should consider the mortgagee’s used by HUD for loan originators under national default and claim rate for national rate of defaults and claims, and Mortgagee Letter 99–15. insured mortgages. The language of the the risk management process and HUD response. HUD has not adopted proposed rule was designed to remind internal controls that the mortgagee has the change requested by the commenter. a poor performing mortgagee that implemented to manage the rate of However, HUD has revised the rule to placement on Credit Watch status is a defaults and claims at the local level. clarify the requirements applicable to warning that its default and claim rate HUD response. HUD’s review underwriting mortgagees and is is unacceptable and, that unless analyzes the performance of every FHA requesting public comments on the new corrective action is taken, the rate may approved mortgagee branch in each regulatory language. Further, prior to soon rise to a level triggering possible geographic area served by a HUD field implementation of the regulatory termination of its origination approval office. HUD’s regulations permit HUD to changes made by this interim rule, HUD agreement. terminate the origination approval will issue guidance (such as a Mortgagee Comment: HUD should not establish agreement with any mortgagee having a Letter) that will provide additional a firm threshold for placement on Credit default and claim rate that exceeds 200 information to assist underwriting Watch status. One commenter made this percent of the default and claim rate mortgagees in their compliance efforts. suggestion. The commenter wrote that, within the geographic area served by a Comment: HUD should take into over time, as mortgagees manage their HUD field office, and also exceeds the consideration proactive measures taken portfolio, the ‘‘normal rate’’ band will national default and claim rate. Since by sponsors against unscrupulous loan narrow, and make it more difficult for HUD’s Credit Watch Termination correspondents. Two commenters wrote mortgagees to operate below this Initiative is based on statistics, a that underwriting sponsor mortgagees threshold on an ongoing basis. mortgagee’s risk management processes are removed from the mortgage HUD response. HUD adopted the and internal controls would not be origination process, and sometimes the proposed regulatory amendment considered prior to prohibiting a victims of fraud perpetuated by mortgagee from establishing new without change. However, HUD will unscrupulous loan correspondents. branches. Further, a mortgagee with periodically review the normal rate to Accordingly, the commenters suggested significant risk management processes determine whether the thresholds that the rule should exclude default and and internal controls will be less likely should be adjusted to reflect overall claim performance numbers from the to receive a termination letter from improvement in the FHA portfolio. Credit Watch evaluation of sponsor HUD. Comment: HUD should conduct mortgagees where the sponsor discovers national Credit Watch evaluations for D. Comments on Inclusion of and reports fraud committed by a mortgagees that operate on a national Underwriting Mortgagees correspondent, or where the sponsor has basis. One commenter expressed Comment: Support for inclusion of terminated the correspondent. concerns over HUD’s conducting Credit underwriting mortgagees. Two HUD response. Since HUD’s Credit Watch evaluations on a regional basis. commenters wrote that the inclusion of Watch Termination Initiative is based The commenter suggested that for underwriting mortgagees would on statistical data, it would not be mortgagees operating on a national promote increased access to affordable possible to exclude the default and basis, HUD’s review should consider the loans for underserved communities and claim numbers of sponsoring mortgagee’s national default and claim strengthen the Credit Watch mortgagees where the sponsor discovers rate, not just defaults and claims in one Termination Initiative. and reports fraud. However, HUD would region. HUD response. HUD appreciates the consider these issues if the mortgagee HUD response. HUD’s evaluation of support expressed by the commenters. received a termination letter and mortgagees on the basis of HUD field The inclusion of underwriting presented those issues to HUD. office jurisdiction coincides with the mortgagees will help to ensure that the Comment: HUD should provide manner in which FHA approves performance of all mortgagees involved guidance to sponsors on the evaluation mortgagees to operate. This method of in FHA-insured mortgage transactions is and the performance of their loan evaluation recognizes that local market properly evaluated. As noted above in correspondents using the Neighborhood conditions and events may contribute to this preamble, HUD has revised the rule Watch Early Warning System. One higher defaults and claims. to provide for separate regulatory commenter made this recommendation. The commenter wrote that HUD should C. Comments on Limitations on the language that specifically addresses provide sponsors with formal Establishment of New Branches underwriting mortgagees. HUD is issuing these changes on an interim descriptions of the factors taken into Comment: Support for limitation on basis and soliciting public comment for consideration when evaluating the the establishment of new branch offices. a period of 60 days. HUD will issue a performance of FHA correspondents, in Two commenters wrote that elimination follow-up final rule addressing the order to assist the sponsors in of this loophole in the current significant issues raised by the public proactively managing the performance regulations would strengthen the Credit commenters on the new language of their correspondents. Further, the Watch Termination Initiative and regarding underwriting mortgagees. commenter recommended that HUD promote access to affordable loans for Comment: HUD should ‘‘phase-in’’ develop a system to notify sponsors of underserved communities. the Credit Watch termination thresholds audit results, Credit Watch actions, and HUD response. HUD appreciates the for underwriting mortgagees. One other actions taken against FHA support expressed by the commenters. commenter wrote that this would correspondents. The commenter wrote This interim rule adopts the proposed provide underwriting sponsors with that HUD could provide a web-link regulatory amendment without change. time to implement the necessary where actions against FHA
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correspondents are outlined and regulatory requirements to underwriting supported the use of the amortization updated monthly. mortgagees. Specifically, HUD has date to determine the date of mortgage HUD response. As noted above, HUD revised the rule to provide for separate origination under the Credit Watch has revised the rule to clarify the new regulatory language to specifically Termination Initiative. The commenter requirements applicable to underwriting address the applicability of the Credit wrote that the amortization date is mortgagees and is requesting public Watch Termination Initiative to easier to track and would be a more comments on this new regulatory underwriting mortgagees. Because the consistent starting date between loans. language. Further, HUD will issue new regulatory language was not part of HUD response. Use of the guidance to assist mortgagees in the the April 1, 2003, proposed rule, HUD amortization date provides a more implementation of the new is issuing these changes on an interim uniform starting date for Credit Watch requirements established by this interim basis and is requesting public comments evaluations, and improve the accuracy rule. In addition, HUD’s Internet site at: for a period of 60 days. HUD will issue of these evaluations. Accordingly, this http://www.hud.gov/offices/hsg/sfh/ a follow-up final rule addressing the interim rule adopts the proposed lender/lendterm.cfm includes a list of significant issues raised by the regulatory amendment without change. all lenders whose origination approval commenters on the new language F. Comments Regarding Informal agreements have been terminated as a concerning underwriting mortgagees. Conference Prior to Termination result of the Credit Watch Termination Initiative. HUD also notes that the E. Comments Regarding Mortgage Comment: HUD should establish a causes and descriptions of Origination Date more detailed process for reviewing administrative actions taken by HUD’s Comment: The Credit Watch mortgagee performance prior to Mortgagee Review Board against HUD- Termination Initiative should continue termination. One commenter made this approved mortgagees are regularly to use the FHA endorsement date as the suggestion. The commenter suggested published in the Federal Register. HUD mortgage origination date. One that a mortgagee should be permitted to suggests that sponsors also require that commenter made this suggestion. The initiate the formal review and present loan correspondents provide them with commenter wrote that since the primary mitigating information, such as the audit reports or other actions taken by purpose of the Credit Watch number of loans in underserved areas HUD. Termination Initiative is to mitigate risk and the number of loans that were Comment: The rule should permit to the FHA mortgage insurance fund, streamlined refinances involving FHA to look at mitigating factors the date of FHA endorsement should be minimal underwriting. The commenter underlying the default and claim rates the starting point for evaluation of a wrote that the mortgagee should also of an underwriting mortgagee. One mortgagee’s performance. The have the opportunity to present a risk- commenter made this suggestion. The commenter wrote that until a loan is management plan pertaining to the commenter wrote that a mortgagee endorsed, there is no risk to the FHA branch, and that HUD should terminate operating in an urban area, or primarily mortgage insurance fund and the the mortgagee only if the improvement serving first-time homebuyers, might mortgagee bears all of the risk. plan is not met. experience a higher default and claim HUD response. HUD has not adopted HUD response. HUD has decided not rate than a mortgagee operating in a the suggestion made by the commenter. to revise the rule in response to this suburban area or primarily working on HUD currently evaluates performance comment. HUD undertakes a refinances. based on loans that have been endorsed. comprehensive review of mortgagee HUD response. HUD regulations HUD’s regulations at § 203.255(b) performance prior to sending a permit a mortgagee to request an require that lenders submit loans to proposed termination notice. For informal conference with the Deputy HUD for endorsement within 60 days example, HUD analyzes a mortgagee’s Assistant Secretary for Single Family from loan closing. However, there may portfolio by insurance fund (i.e., Mutual Housing, or that official’s designee, be a gap in time from the origination Mortgage, General, and Special Risk), prior to the termination of its date (beginning amortization date) and and by census tract designation (i.e., origination approval agreement. During the endorsement date based on the served, underserved and undesignated). the informal conference, the mortgagee period of time after closing in which a HUD also evaluates the impact of has the opportunity to present HUD mortgagee submits a loan for insurance streamline-refinanced loans for each with explanations for its high default to HUD. Additional time may elapse if mortgagee prior to issuing a proposed and claim rate. However, the mortgagee the mortgagee has failed to provide HUD termination notice. HUD also notes that must be able to explain how the issues with all of the required documents. each mortgagee is required to have a presented caused it to have a default These time gaps have resulted in quality control plan and to perform and claim rate higher than the average inconsistencies among the starting dates regular quality control reviews that will for the area. used by HUD to evaluate mortgagee loan bring potential problems to its attention. Comment: The rule should clarify performance. Using the beginning In addition, mortgagees should use how the Credit Watch Termination amortization date instead of the HUD’s Neighborhood Watch Early Initiative will apply to sponsoring endorsement date provides a uniform Warning System to monitor the mortgagees. One commenter made this starting date for HUD’s analysis. performance of their branches and take suggestion. The commenter was unsure Further, since the beginning prompt corrective action before receipt how the placement on Credit Watch amortization date is now used of a proposed termination letter from status would affect an underwriting throughout HUD for loan performance HUD. sponsor mortgagee. For example, the analysis, this interim rule has the added Comment: HUD should establish a commenter asked whether a sponsor benefit of conforming the Credit Watch process to allow the public to comment mortgagee terminated in a given HUD procedures to other HUD loan on the FHA lending performance of office area would be prohibited from performance evaluation procedures. questionable mortgagees. One underwriting loans in that area. Comment: Support for use of the commenter made this suggestion, HUD response. HUD agrees with the amortization date as the mortgage writing that community groups and commenters. As noted above, this rule origination date. In contrast to the neighborhood residents have first-hand clarifies the applicability of the new preceding comment, one commenter knowledge of mortgagee operations that
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the mortgagee will not volunteer in a commenter wrote that HUD’s apparent related communication or contact by process only involving HUD and the tolerance of higher defaults rates for agency personnel are provided with a mortgagee. The commenter wrote that mortgagees doing business in means to comment on the enforcement HUD should publicize any requests for underserved areas might perpetuate activity conducted by this personnel.’’ an informal conference on HUD’s Web property flipping and other FHA To implement this statutory provision, site and invite community groups to program abuses leading to higher rates the Small Business Administration has comment during the conference. of default in these areas. To avoid this requested that agencies include the Further, the commenter advocated that adverse outcome, the commenter following language on agency HUD also solicit public comments as recommended that HUD either: (1) publications and notices that are part of the reinstatement process for a Apply its default rates uniformly provided to small business concerns at mortgagee that has been terminated. The regardless of the neighborhoods served the time the enforcement action is commenter suggested that HUD provide by the mortgagee; or (2) perform the undertaken. The language is as follows: the public with the mortgagee’s Credit Watch analysis at a geographical corrective action plan and require that level smaller than the HUD Field Office Your Comments Are Important the mortgagee meet with the public to level. Under the second option, if a The Small Business and Agriculture discuss their comments on the plan. mortgagee primarily focused on the Regulatory Enforcement Ombudsman and 10 HUD response. HUD’s Credit Watch inner city, the default rate analysis Regional Fairness Boards were established to Termination Initiative is based on would be performed on the level of the receive comments from small businesses statistical data, rather than fact-finding. city, instead of the HUD Field Office about federal agency enforcement actions. Soliciting the involvement of level. The commenter wrote that since The Ombudsman will annually evaluate the community groups in the informal a HUD Field Office encompasses a enforcement activities and rate each agency’s responsiveness to small business. If you wish conference process and in the number of metropolitan areas and rural to comment on the enforcement actions of reinstatement process would change the parts of a state, a smaller geographical [insert agency name], you will find the essence of Credit Watch Termination to unit, such as a metropolitan area, a necessary comment forms at http:// more of a fact-finding initiative. county and/or a city, may be a more www.sba.gov.ombudsman or call 1–888– However, if community groups are appropriate comparison. REG–FAIR (1–888–734–3247). aware of concerns regarding FHA HUD response. HUD considers a In accordance with its notice approved mortgagees, they should mortgagee’s default and claim rate by describing HUD’s actions on the notify the quality assurance division census tract designation (i.e., implementation of SBREFA, which was directors in FHA’s four Homeownership underserved, served, and undesignated). published on May 21, 1998 (63 FR Centers (HOCs). HUD publishes a list of Mortgagee Letter 99–15 further clarifies 28214), HUD will work with the Small mortgagees that have had their that if a mortgagee’s rate of defaults and Business Administration to provide claims does not exceed 200% of the origination approval agreements small entities with information on the terminated in the Federal Register and HUD field office’s rate of defaults and Fairness Boards and National on HUD’s Internet site. claims in underserved census tracts, Ombudsman program, at the time then the mortgagee’s performance is G. Comments Regarding the Definition enforcement actions are taken, to ensure acceptable in underserved tracts. of Underserved Area that small entities have the full means Therefore, HUD does apply its default to comment on the enforcement activity Comment: Concerns about the rates uniformly regardless of the census conducted by HUD. definition of ‘‘underserved area.’’ One tract designation served by the commenter wrote that defining the term mortgagee. V. Findings and Certifications ‘‘underserved area’’ through the use of HUD’s evaluation of mortgagee branch census tracts would perpetuate abuses. performance by HUD field office Regulatory Planning and Review The commenter wrote that a mortgagee designation is consistent with the The Office of Management and Budget that is the predominant lender in a method used by FHA to approve (OMB) reviewed this rule under census tract would never be penalized mortgagees to operate. However, HUD Executive Order 12866 (entitled if the benchmark default rate used for will consider the issue of a lender’s ‘‘Regulatory Planning and Review’’). determining possible termination is the business being concentrated in a smaller OMB determined that this rule is a default rate of the census tract in area if presented by the mortgagee in ‘‘significant regulatory action’’ as question. response to a proposed termination defined in section 3(f) of the Order HUD response. HUD has not revised notice. (although not economically significant, the rule in response to this comment. as provided in section 3(f)(1) of the IV. Small Business Concerns Related to HUD’s data analysis of a mortgagee’s Order). Any changes made to the rule Credit Watch Termination Initiative performance by census tract involves subsequent to its submission to OMB aggregating the loans for all census With respect to termination of the are identified in the docket file, which tracts that are identified as being mortgagee’s origination approval is available for public inspection in the underserved, served, or undesignated agreement, or taking other appropriate Regulations Division, Room 10276, within the jurisdiction of a HUD office. enforcement action against a mortgagee, Office of General Counsel, Department Mortgagee performance within specific HUD is cognizant that section 222 of the of Housing and Urban Development, census tracts is not analyzed. Small Business Regulatory Enforcement 451 Seventh Street, SW., Washington, Comment: HUD should not consider Fairness Act of 1996 (Pub. L. 104–121) DC 20410–0500. the servicing of underserved areas in (SBREFA) requires the Small Business evaluating a mortgagee’s performance. and Agriculture Regulatory Enforcement Regulatory Flexibility Act One commenter wrote that under the Ombudsman to ‘‘work with each agency The Regulatory Flexibility Act (RFA) current regulations, it is permissible for with regulatory authority over small (5 U.S.C. 601 et seq.), generally requires a mortgagee to have a default and claim businesses to ensure that small business an agency to conduct a regulatory rate higher than 200% of the normal concerns that receive or are subject to an flexibility analysis of any rule subject to rate, if the mortgagee primarily serves audit, on-site inspection, compliance notice and comment rulemaking lower-income underserved areas. The assistance effort, or other enforcement requirements unless the agency certifies
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that the rule will not have a significant ensure that the performance of all agency from promulgating a regulation economic impact on a substantial mortgagees involved in FHA-insured that has federalism implications and number of small entities. This rule mortgage transactions is evaluated. To either imposes substantial direct makes several amendments to HUD’s the extent that the change will have an compliance costs on state and local regulations for the FHA Credit Watch economic impact on small underwriting governments and is not required by Termination Initiative. First, consistent mortgagees who are presently not statute or preempts state law, unless the with the goals of the Administration covered by Credit Watch Termination, it relevant requirements of section 6 of the regarding the increased use of will be as a result of actions taken by the Executive Order are met. This rule does technology in government, the interim mortgagees themselves—that is, failure not have federalism implications and rule provides for a fully computerized to undertake the sound business does not impose substantial direct Credit Watch notification process practices necessary to maintain default compliance costs on state and local through use of the FHA Neighborhood and claim rates at an acceptable level. governments or preempt state law Watch Early Warning System. This The interim rule also provides that, within the meaning of the Executive change will provide for a streamlined for purposes of the Credit Watch Order. and more effective method of Termination evaluation, the date of monitoring mortgagee performance and mortgage origination will be considered Unfunded Mandates Reform Act for notifying poor performing to be the date the loan transaction Title II of the Unfunded Mandates mortgagees that are in danger of having commences amortization, rather than Reform Act of 1995 (2 U.S.C. 1531– their origination approval agreements the date of endorsement for FHA 1538) (UMRA) establishes requirements terminated by HUD. The change will not mortgage insurance. This change will for federal agencies to assess the effects impose an undue burden on small not impose any economic burden on of their regulatory actions on state, entities, since it merely codifies existing small mortgagees. Rather, the change local, and tribal governments and the HUD policy previously announced will improve the accuracy of Credit private sector. This interim rule does through a Mortgagee Letter. Further, the Watch Termination evaluations by not impose any federal mandates on any majority of mortgagees (small and large) conforming HUD’s definition of the state, local, or tribal government or the participating in the FHA mortgage mortgage origination date to the private sector within the meaning of insurance programs currently have beginning amortization date used to UMRA. access to the FHA Internet Connection report defaults. Finally, the interim rule that is used to provide such notification. will codify the existing definition of the Catalog of Federal Domestic Assistance The rule also removes the regulatory term ‘‘underserved area’’ for purposes of The Catalog of Federal Domestic cap on the Credit Watch default and Credit Watch Termination Assistance Program number applicable claim rates, and provides that a determinations. This amendment will to 24 CFR part 202 is 14.20. mortgagee will be considered to be on merely codify existing policy and will, List of Subjects in 24 CFR Part 202 Credit Watch Status if it has a default therefore, not impose any new economic and claim rate on insured mortgages burden on mortgagees. Administrative practice and that exceeds 150 percent of the normal Accordingly, the undersigned certifies procedure, Home improvement, rate and its origination approval that this rule will not have a significant manufactured homes, Mortgage agreement has not been terminated. This economic impact on a substantial insurance, Reporting and recordkeeping revision will not impose a significant number of small entities. requirements. economic impact on small entities, Notwithstanding HUD’s determination I Accordingly, for the reasons described since the entities that will be affected by that this rule will not have a significant in the preamble, HUD amends 24 CFR this change are poorly performing economic impact on a substantial part 202 as follows: mortgagees that are already subject to number of small entities, HUD termination of their origination approval specifically invites comments regarding PART 202—APPROVAL OF LENDING agreements. less burdensome alternatives to this rule INSTITUTIONS AND MORTGAGEES The rule also prohibits a mortgagee that will meet HUD’s objectives as I 1. The authority citation for 24 CFR that has received a notice of proposed described in this preamble. part 202 continues to read as follows: termination of its origination approval agreement from establishing a new Environmental Impact Authority: 12 U.S.C. 1703, 1709, and branch in the lending area covered by This interim rule will not direct, 1715b; 42 U.S.C. 3535(d). the proposed termination. The provide for assistance or loan and I 2. In § 202.3, revise paragraph (c)(2) mortgagees to which this change will be mortgage insurance for, or otherwise and add paragraph (e) to read as follows: applicable are those that already have govern or regulate, real property been notified by HUD that their default acquisition, disposition, leasing, § 202.3 Approval status for lenders and and claim rates exceed an acceptable rehabilitation, alteration, demolition, or mortgagees. standard in specified geographic areas new construction, or establish, revise, or * * * * * and they are at risk of having their FHA provide for standards for construction or (c) * * * mortgage origination approvals construction materials, manufactured (2) Credit Watch Termination. (i) terminated. The intent of this housing, or occupancy. Accordingly, Scope and frequency of review. The rulemaking is to close a loophole used under 24 CFR 50.19(c), this interim rule Secretary will review, on an ongoing by mortgagees to evade HUD’s existing is categorically excluded from the basis, the number of defaults and claims procedure for reviewing losses to the requirements of the National on mortgages originated, underwritten, FHA mortgage insurance fund. Environmental Policy Act (42 U.S.C. or both, by each mortgagee in the The interim rule also provides that 4332 et seq.). geographic area served by a HUD field the default and claim thresholds office. HUD will make this rate underlying the Credit Watch Executive Order 13132, Federalism information available to mortgagees and Termination Initiative apply to both Executive Order 13132 (entitled the public through electronic means and underwriting and originating ‘‘Federalism’’) prohibits, to the extent will issue instructions for accessing this mortgagees. This amendment will practicable and permitted by law, an information through a Mortgagee Letter.
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For this purpose, and for all purposes (iv) Request for informal conference. (A) The eligibility of the mortgage for under paragraph (c) of this section, a Prior to termination the mortgagee may insurance, absent fraud or mortgage is considered to be originated submit a written request for an informal misrepresentation, if the mortgagor and in the same federal fiscal year in which conference with the Deputy Assistant all terms and conditions of the mortgage its amortization commences. The Secretary for Single Family Housing or had been approved before the Secretary may also review the insured that official’s designee. HUD must termination by the Direct Endorsement mortgage performance of a mortgagee’s receive the written request no later than or Lender Insurance mortgagee or were branch offices individually and may 30 calendar days after the date of the covered by a firm commitment issued terminate the authority of the branch or proposed termination notice. Unless by the Secretary; however, no other the authority of the mortgagee’s overall HUD grants an extension, the informal mortgages originated or underwritten operation. conference must be held no later than after the date of termination by the (ii) Credit Watch Status. Mortgagees 60 calendar days after the date of the mortgagee shall be insured unless the are responsible for monitoring their proposed termination notice. After mortgagee’s origination approval default and claim rate performance. A considering relevant reasons and factors agreement and/or direct endorsement mortgagee is considered to be on Credit beyond the mortgagee’s control that approval is reinstated by the Secretary; Watch Status if, at any time, the contributed to the excessive default and (B) The right of a mortgagee whose mortgagee has a rate of defaults and claim rates, the Deputy Assistant direct endorsement approval has been claims on insured mortgages originated, Secretary for Single Family Housing or terminated to transfer cases to another underwritten, or both, in an area which designee may withdraw the termination mortgagee with direct endorsement exceeds 150 percent of the normal rate notice. approval for the area covered by the and its origination approval agreement (v) Limitation on the establishment of termination. has not been terminated. new branches. Upon receipt of a (C) A mortgagee’s obligation to (iii) Notice of termination. (A) Notice proposed termination notice of its continue to pay insurance premiums of termination of origination approval origination approval agreement, the and meet all other obligations, including agreement. The Secretary may notify a mortgagee shall not establish a new servicing, associated with insured mortgagee that its origination approval branch or new branches for the mortgages; (D) A mortgagee’s right to apply for agreement will terminate 60 days after origination of FHA-insured mortgages in reinstatement of the origination notice is given, if the mortgagee had a the area or areas that are covered by the approval agreement and/or direct rate of defaults and claims on insured proposed termination notice. As of endorsement approval in accordance mortgages originated in an area which January 18, 2005, a mortgagee that is in receipt of a notice of proposed with paragraph (e) of this section; or exceeded 200 percent of the normal rate termination may not establish any new (E) A mortgagee’s right to purchase and exceeded the national default and branch in the location or locations cited insured mortgages or to service its own claim rate for insured mortgages. in the proposed termination notice until portfolio or the portfolios of other (B) Notice of termination of direct either: mortgagees with which it has a servicing endorsement approval. The Secretary (A) The proposed termination notice contract. may notify a mortgagee that its direct is withdrawn or endorsement approval under 24 CFR * * * * * (B) The Secretary reinstates the (e) Reinstatement. (1) General. A part 203 will terminate 60 days after mortgagee’s origination approval mortgagee whose origination approval notice is given, if the mortgagee had a agreement, in accordance with agreement and/or direct endorsement rate of defaults and claims on insured paragraph (e) of this section. approval has been terminated under mortgages underwritten in an area (vi) Effects of termination. (A) paragraph (c) of this section may apply which exceeded 200 percent of the Termination of origination approval for reinstatement if: normal rate and exceeded the national agreement. If a mortgagee’s origination (i) The origination approval default and claim rate for insured approval agreement is terminated, it agreement and/or direct endorsement mortgages. The termination of a may not originate single family insured approval for the affected branch or mortgagee’s direct endorsement mortgages unless the origination branches has been terminated for at approval pursuant to this section is approval agreement is reinstated by the least six months; and separate and apart from the termination Secretary in accordance with paragraph (ii) The mortgagee continues to be an of a mortgagee’s direct endorsement (e) of this section, notwithstanding any approved mortgagee meeting the general approval under 24 CFR part 203. other provision of this part except standards of § 202.5 and the specific (C) No need for prior action by § 202.3(c)(2)(vii)(A). requirements of §§ 202.6, 202.7, 202.8 or Mortgagee Review Board. The (B) Termination of direct endorsement 202.10, and 202.12. termination notices described in approval. If a mortgagee’s direct (2) Application for reinstatement. The paragraphs (c)(2)(ii)(A) and (B) of this endorsement approval is terminated, it mortgagee’s application for section may be given without prior may not underwrite single family reinstatement must: action by the Mortgagee Review Board. insured mortgages for the area(s) (i) Be in a format prescribed by the (D) Underserved areas. Before the identified in the termination notice, Secretary and signed by the mortgagee; Secretary sends the termination notice, unless the direct endorsement approval (ii) Be accompanied by an the Secretary shall review the Census is reinstated by the Secretary in independent analysis of the terminated tract concentrations of the defaults and accordance with paragraph (e) of this office’s operations and identifying the claims. If the Secretary determines that section, notwithstanding any other underlying cause of the mortgagee’s the excessive rate is the result of provision of this part except unacceptable default and claim rate. mortgage lending in underserved areas, § 202.3(c)(2)(vii)(A). The independent analysis must be as defined in 24 CFR 81.2, the Secretary (vii) Rights and obligations in the prepared by an independent Certified may determine not to terminate the event of termination. Termination of the Public Accountant (CPA) qualified to mortgagee’s origination approval origination approval agreement and/or perform audits under the government agreement and/or direct endorsement direct endorsement approval shall not auditing standards issued by the approval. affect: General Accounting Office; and
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(iii) Be accompanied by a corrective (3) HUD action on reinstatement Dated: October 28, 2004. action plan addressing each of the application. The Secretary will grant the John C. Weicher, issues identified in the independent mortgagee’s application for Assistant Secretary for Housing-Federal analysis described in paragraph (e)(2)(ii) reinstatement if the mortgagee’s Housing Commissioner. of this section, along with evidence application is complete and the [FR Doc. 04–27536 Filed 12–16–04; 8:45 am] demonstrating that the mortgagee has Secretary determines that the BILLING CODE 4210–27–P implemented the corrective action plan. underlying causes for the termination have been satisfactorily remedied.
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Part VI
Department of Housing and Urban Development 24 CFR Part 200 Multifamily Accelerated Processing (MAP): MAP Lender Quality Assurance Enforcement; Proposed Rule
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DEPARTMENT OF HOUSING AND calling the toll-free Federal Information refers to actions taken by ‘‘HUD’’ to URBAN DEVELOPMENT Relay Service at (800) 877–8339. avoid the necessity of amending the rule SUPPLEMENTARY INFORMATION: whenever there is a change in an 24 CFR Part 200 official’s title. I. Background [Docket No. FR–4836–P–01; HUD–2004– MAP Lender Review Board. The MAP 0015] MAP Lender Quality Assurance Lender Review Board (Board) is to Enforcement. Multifamily lenders that consist of three HUD Multifamily RIN 2502–AI01 are approved MAP lenders and that Housing officials designated by the process a multifamily mortgage loan Assistant Secretary for Housing or his Multifamily Accelerated Processing using MAP procedures do so with the designee. The Board is authorized to (MAP): MAP Lender Quality Assurance understanding and agreement that their take action against any MAP lender for Enforcement loan processing actions and decisions reasons provided in § 200.1530 of this AGENCY: Office of the Assistant are subject to HUD review. By allowing proposed rule entitled, ‘‘Bases for Secretary for Housing—Federal Housing a MAP lender to prepare much of the sanctioning a MAP lender.’’ Actions Commissioner, HUD. documentation for a loan submission for include: warning letters, probation, ACTION: Proposed rule. FHA multifamily mortgage insurance, suspension or termination of MAP HUD places confidence in the lender’s lender privileges. Decisions will be by SUMMARY: HUD is publishing for integrity and competence. If, in the majority vote. Board members are comment the basis for, and procedures process of performing this function, the expected to possess a sound knowledge applicable to, enforcement actions lender should place the FHA of multifamily housing origination, under Multifamily Accelerated multifamily mortgage insurance underwriting and construction loan Processing (MAP), a form of ‘‘fast-track portfolio at risk, HUD must have (1) an procedures. HUD’s Office of Inspector processing’’ that gives qualified lenders accelerated process for review of the General (OIG) and Office of General the option of preparing the applicable lender’s actions, and (2) the means to Counsel (OGC) will each designate a Federal Housing Administration (FHA) act expeditiously to correct violations. non-voting advisor to the Board. forms and doing preliminary This accelerated review process and Further, the Board is authorized to refer underwriting for certain loan mechanism for HUD action is referred to MAP lenders to OIG and may refer the applications. as ‘‘MAP Lender Quality Assurance staff, or the contractors of the MAP Enforcement.’’ The proposed rule lender, to the Deputy Assistant DATES: Comment Due Date: February 15, establishes in 24 CFR part 200, a new Secretary (DAS) for Multifamily 2005. subpart Y, consisting of §§ 200.1500 Housing for imposition of an LDP, as ADDRESSES: Interested persons are through 200.1545, which presents the defined in 24 CFR 24.105. The general invited to submit comments regarding requirements and procedures that procedures governing the Board are this rule to the Regulations Division, constitute MAP Lender Quality provided in § 200.1535 of this rule. Office of General Counsel, Room 10276, Assurance Enforcement. MAP Warning Letters. HUD Department of Housing and Urban To accomplish quality assurance of a Multifamily Hub and Program Center Development, 451 Seventh Street, SW., lender’s MAP loan processing actions, Directors, the Director of Multifamily Washington, DC 20410–0500. Interested the Directors of HUD field offices (Hub/ Development, and the Board may issue persons may also submit comments Program Centers) and the Director of the MAP warning letters for minor offenses electronically through either: Office of Multifamily Development as well as for more serious offenses. • The Federal eRulemaking Portal at: initiate discussions with MAP lenders Warning letters must specify the MAP http://www.regulations.gov; or • regarding concerns with respect to a violations and may direct the taking of The HUD electronic Web site at: MAP lender’s actions. These corrective actions. In addition, these http://www.epa.gov/feddocket. Follow discussions may lead to the imposition HUD officials will issue MAP warning the link entitled View Open HUD of a sanction by HUD, including a letters to MAP lenders for violations by Dockets.’’ Commenters should follow warning letter, a Limited Denial of a MAP lender’s third party contractor. A the instructions provided on that site to Participation (LDP) action against the MAP warning letter does not suspend or submit comments electronically. lender or an employee or contract terminate a lender’s MAP privileges, but Facsimile (fax) comments are not person of the MAP lender, referral to the it may be used as evidence in a acceptable. In all cases, communications Office of the Inspector General, referral subsequent action which results in the must refer to the above docket number to the MAP Lender Review Board, or imposition of probation, suspension, or and title. All comments and referral to the Mortgagee Review Board. termination. The issuance of a MAP communications submitted will be Sanctions involving MAP probation, warning letter is not, however, a available, without revision, for public suspension or termination will generally prerequisite for these more serious inspection and copying between 8 a.m. be the result of a recommendation by actions. Section 200.1505 of this rule and 5 p.m. weekdays at the above the Director of the Office of Multifamily addresses HUD’s use of warning letters. address. Copies are also available for Development, HUD Headquarters, or MAP Probation. The Board may place inspection and downloading at http:// Hub Director to the MAP Lender Review a lender on MAP probation after www.epa.gov/feddocket. Board. following procedures that give notice FOR FURTHER INFORMATION CONTACT: The identification of the specific HUD and a pre-deprivation conference to the Michael McCullough, Director, Office of staff and officials who may initiate and MAP lender. MAP probation is limited Multifamily Development, Office of participate in the procedures provided to the time to make the corrective Housing, Room 6138, Department of in this rule is a matter of HUD’s changes and/or improvements required Housing and Urban Development, 451 organization and HUD’s own internal by the Board. When the MAP lender has Seventh Street, SW., Washington, DC practices or procedures, and may taken all corrective actions or completed 20410–0500; telephone (202) 708–1142 change from time to time. Therefore, the improvements directed by the (this is not a toll-free number). Persons although this preamble may discuss Board, the MAP lender shall notify the with hearing or speech disabilities may actions taken by specific HUD officials, Board. Once the Board is satisfied that access this number through TTY by the proposed rule text more generally the corrective actions have occurred, the
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probation period shall end. Failure on eligibility for MAP for poor example, discussions may result in a the part of the MAP lender to take performance, among other reasons after settlement agreement under which the responsible corrective action in a timely following procedures that give notice MAP lender agrees to implement or manner to satisfy the charges that and a pre-deprivation conference to the revise a quality control plan, in lieu of resulted in the probation creates the MAP lender. An application for being referred to the Board. When these potential for a recommendation to the reinstatement of MAP authority discussions occur following a referral to Board of either MAP suspension or following notification of termination the Board for possible disciplinary termination. In such instances, and to may not be submitted until 12 months action, any settlement agreement the extent practical, the Board members have passed from the date of reached is subject to approval by the who served on the original Board termination. Requirements for Board. The provisions for settlement bringing the original charges should reinstatement shall be similar to the agreements appear at § 200.1525 of the comprise the Board that hears the initial qualification for MAP lender rule. subsequent charges. approval stated in Chapter 2 of the MAP Lender Notification. Prior to the MAP MAP probation covers all MAP lender Guide with the additional proof that the Board reviewing any matter for activity regardless of geographic conditions that resulted in the consideration of a sanction against a location. HUD shall issue the notice of termination have been resolved to the MAP lender, the Board Chairperson MAP probation in writing. During MAP satisfaction of HUD. MAP termination shall notify the subject MAP lender. probation, the MAP lender’s corporate affects all MAP processing by the lender This notification shall be in writing name shall be removed from the HUD nationwide. HUD will not endorse any stating the specific alleged violation(s) Web site listing approved MAP lenders, MAP loan processed by the terminated along with the citation of the HUD but the corporate name shall be returned lender unless a firm commitment was requirements that are the subject of the to the Web site once MAP probation has issued prior to the date of termination. charge. The MAP lender shall be been lifted. During MAP probation, a MAP applications and pre-applications provided an opportunity to meet MAP lender may not submit, and the in process should be transferred either informally with the Board, through a HUD field office may not accept, to the traditional application processing conference call, in person, or by materials for a new MAP pre- (TAP) procedure or to another MAP teleconference video, using HUD application or firm commitment lender. In either case, the loan must be facilities and/or to present in writing application after the close of business reprocessed in its entirety. any relevant information. The MAP on the date of the probation letter. In certain circumstances, termination lender shall also be provided an However, a MAP lender placed on of MAP lender status may also occur opportunity to respond in writing to the probation may continue to process without action by the Board. Failure by Board regarding the alleged violation applications submitted to the HUD Hub/ a MAP lender to maintain its status as prior to any meeting. The MAP Lender Program Center prior to the close of an FHA approved Lender results in Review Board procedures are included business on the date of the probation immediate removal as an approved in § 200.1535. letter. Placing a MAP lender on MAP MAP lender. In addition, MAP lenders The Review Board shall have the probation does not impact the authority must maintain a minimum level of MAP power, however, to issue a notice of of the subject lender from receiving, or lender activity. This rule would require action to terminate a MAP lender, or to continuing to process, non-MAP all MAP lenders to submit either a pre- place a MAP lender on probation or mortgage loans. MAP probation is application package or firm suspension without advance notice to covered by § 200.1510 of this rule. commitment application at least once the MAP lender in those instances Suspension of MAP Privileges. The every 12 months. Failure to maintain where the Board believes there exists a Board may suspend a MAP lender from this minimum level of MAP activity will need to protect the financial interest of MAP activity for serious offenses after subject the lender to removal from the the government from imminent harm. In following procedures that give notice MAP program by the Office of all such instances, the Board shall notify and a pre-deprivation conference to the Multifamily Development. Notification the lender of the Board’s decision MAP lender. Suspension is time limited will be given to the MAP lender prior promptly giving the reasons for the to no more than one year, except where to termination for violation of this decision. The lender shall have the right conditions are imposed. Any conditions minimum level of activity requirement. to submit materials to the Board and to that may be imposed by MAP probation When a MAP lender loses its MAP appear before the Board to seek prompt may also be applied to MAP suspension. lender status as a result of failure to reconsideration of the Board’s decision. If both a time limit and corrective meet and maintain the minimum level These imminent harm provisions appear conditions are imposed, MAP of MAP activity, the lenders’ status to at § 200.1540. suspension shall terminate following (1) process using TAP is unaffected. MAP Appeals. When the Board imposes a the expiration of the time limit, (2) the lenders who have their MAP status sanction of probation, suspension or MAP lender’s submission to the Board rescinded for inactivity may reapply for termination against a MAP lender, the of a certification of compliance with any MAP lender approval to commence one lender shall have the option of conditions imposed, and (3) the Board’s year from the effective date of having requesting an informal conference with notification to the MAP lender that it their approved MAP lender status a designated appeals official designated has received the certification of terminated. Termination of MAP by the Assistant Secretary for Housing. compliance and is satisfied that the lenders is addressed in § 200.1520 of the The designated appeals official will not corrective actions have occurred. rule. be a member of the Board involved in Suspension of MAP privileges carries Settlement Agreements. The Director the original sanction decision. If the the same lender processing restrictions of HUD’s Office of Multifamily appeals official overturns the Board’s as MAP probation, cited above. Development may enter into discussions decision, on probation, suspension or Suspension is nationwide in effect. with a MAP lender leading to a termination, the lender shall return Section 200.1515 of this rule addresses negotiated settlement agreement immediately to active status as a MAP MAP suspension. between HUD and the MAP lender lender. Participation in the appeals Termination of MAP Privileges. The before or after the issuance of a warning process is not a prerequisite for the Board may terminate a lender’s letter or referral to the Board. For filing of an action for judicial review
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under the Administrative Procedures either imposes substantial direct Your Comments Are Important Act. The appeals procedures are located compliance costs on state and local The Small Business and Agriculture in § 200.1545 of this rule. governments and is not required by Regulatory Enforcement Ombudsman and 10 statute, or preempts State law, unless Regional Fairness Boards were established to II. Issues Highlighted for Public receive comments from small businesses Comment the relevant requirements of section 6 of the executive order are met. This rule about Federal agency enforcement actions. HUD is specifically seeking comment The Ombudsman will annually evaluate the does not have federalism implications enforcement activities and rate each agency’s on whether quantitative measures, such and does not impose substantial direct as a lender’s frequency or severity of responsiveness to small business. If you wish compliance costs on State and local to comment on the enforcement actions of claims, exist which may serve as a basis governments or preempt State law [insert agency name], call 1–888–REG–FAIR for sanctioning MAP lenders, and if so, within the meaning of the executive (1–888–734–3247). what those quantitative measures may order. be. In the current proposed rule, HUD As HUD stated in its notice describing lists numerous qualitative measures that Impact on Small Entities HUD’s actions on the implementation of may serve as the basis of sanctions, but SBREFA, which was published on May does not include quantitative measures. The Secretary, in accordance with the 21, 1998 (63 FR 28214), HUD intends to HUD is also particularly interested in Regulatory Flexibility Act (5 U.S.C. work with the Small Business obtaining public comment on additional 605(b)), has reviewed and approved this Administration to provide small entities qualitative measures that might serve as proposed rule and in so doing certifies with information on the Fairness Boards the basis for sanctions and whether the that this rule will not have a significant and National Ombudsman program, at MAP Lender Quality Assurance economic impact on a substantial the time enforcement actions are taken, Enforcement process may be made less number of small entities for the to ensure that small entities have the burdensome, while still providing MAP following reasons. The rule provides full means to comment on the lenders the opportunity to respond clear, uniform, expeditious, and enforcement activity conducted by adequately to a notice of violation and equitable requirements and procedures HUD. to participate in the resolution of to permit HUD to take enforcement Environmental Impact problems. actions, correct MAP violations, and protect the financial interests of the This proposed rule does not direct, III. Findings and Certifications government. As such, the rule results in provide for assistance or loan or Regulatory Planning and Review an industrywide and governmental mortgage insurance for, or otherwise benefit in that it clarifies the terms of govern or regulate, real property The Office of Management and Budget acquisition, disposition, leasing, (OMB) reviewed this rule under the relationship between HUD and MAP lenders. rehabilitation, alteration, demolition, or Executive Order 12866 (entitled new construction, or establish, revise or ‘‘Regulatory Planning and Review’’). Notwithstanding HUD’s provide for standards for construction or OMB determined that this rule is a determination that this rule will not construction materials, manufactured ‘‘significant regulatory action’’ as have a significant economic impact on housing, or occupancy. Accordingly, defined in section 3(f) of the Order a substantial number of small entities, under 24 CFR 50.19(c)(1), this proposed (although not an economically HUD specifically invites comments rule is categorically excluded from significant regulatory action, as regarding any less burdensome environmental review under the provided under section 3(f)(1) of the alternatives to this rule that will meet National Environmental Policy Act of Order). Any changes made to the rule HUD’s objectives as described in this 1969 (42 U.S.C. 4321). subsequent to its submission to OMB preamble. are identified in the docket file, which Catalog of Federal Domestic Assistance With respect to taking appropriate is available for public inspection in the enforcement action against a MAP The Catalog of Federal Domestic Regulations Division, Room 10276, lender, HUD is cognizant that section Assistance number applicable to the Office of General Counsel, Department 222 of the Small Business Regulatory program affected by this rule is 14.134. of Housing and Urban Development, Enforcement Fairness Act of 1996 (Pub. 451 Seventh Street, SW., Washington, List of Subjects in 24 CFR Part 200 L. 104–121) (referred to as ‘‘SBREFA’’) DC 20410–0500. requires the Small Business and Administrative practice and Unfunded Mandates Reform Act Agriculture Regulatory Enforcement procedure, Claims, Equal employment opportunity, Fair housing, Home Title II of the Unfunded Mandates Ombudsman to ‘‘work with each agency with regulatory authority over small improvement, Housing standards, Reform Act of 1995 (2 U.S.C. 1531– Incorporation by reference, Lead 1538) (UMRA) establishes requirements businesses to ensure that small business concerns that receive or are subject to an poisoning, Loan programs—housing and for Federal agencies to assess the effects community development, Minimum of their regulatory actions on State, audit, on-site inspection, compliance assistance effort or other enforcement property standards, Mortgage insurance, local, and tribal governments and the Organization and functions private sector. This proposed rule does related communication or contact by agency personnel are provided with a (Government agencies), Penalties, not impose any Federal mandates on Reporting and recordkeeping any State, local, or tribal government or means to comment on the enforcement activity conducted by this personnel.’’ requirements, Social security, the private sector within the meaning of Unemployment compensation, Wages. UMRA. To implement this statutory provision, the Small Business Administration has Accordingly, HUD proposes to amend Executive Order 13132, Federalism requested that agencies include the 24 CFR part 200 as follows: Executive Order 13132 (entitled following language on agency PART 200—INTRODUCTION TO FHA ‘‘Federalism’’) prohibits, to the extent publications and notices that are PROGRAMS practicable and permitted by law, an provided to small businesses at the time agency from promulgating a regulation the enforcement action is undertaken. 1. The authority citation for 24 CFR that has federalism implications and The language is as follows: part 200 continues to read as follows:
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Authority: 12 U.S.C. 1702–1715z–21; 42 subject to the MAP Lender Review eligibility for MAP, in accordance with U.S.C. 3535(d). Board procedures in accordance with the procedures of § 200.1535. 2. A new subpart Y is added to read § 200.1535, and is not a prerequisite to (b) Effect of suspension. (1) A as follows: the probation, or suspension, or suspension may impose any conditions Subpart Y—Multifamily Accelerated termination of MAP privileges. that may be imposed by probation. Processing (MAP): MAP Lender Quality (2) During the suspension period a § 200.1510 Probation. Assurance Enforcement MAP lender: (a) In general. Only the MAP Lender (i) Shall be removed from the MAP- Sec. Review Board (or Board) may place a 200.1500 Sanctions against a MAP lender. approved lender list posted on HUD’s 200.1505 Warning letter. lender on probation, in accordance with Web site; 200.1510 Probation. the procedures of § 200.1535. (ii) May not submit, and the HUD 200.1515 Suspension of MAP privileges. (b) Effect of probation. (1) Probation is field office may not accept, materials 200.1520 Termination of MAP privileges. intended to be corrective in nature and after the close of business of the date of 200.1525 Settlement agreements. not punitive. As a result, release from the suspension letter for a new 200.1530 Bases for sanctioning a MAP probation is conditioned upon the application for multifamily mortgage lender. lender meeting a specific requirement or insurance from HUD; and 200.1535 MAP Lender Review Board. requirements, such as replacement of a 200.1540 Imminent harm notice of action. (iii) May continue to process any staff member. A lender’s failure to take existing application for multifamily 200.1545 Appeals of MAP Lender Review prompt corrective action after being Board decisions. mortgage insurance submitted to a placed on probation may be the basis for Multifamily Hub or Program Center § 200.1500 Sanctions against a MAP a recommendation of either suspension before the date of the suspension letter. lender. or termination. Any such (3) The MAP Lender Review Board (a) In addition to any other legal recommendation shall, when possible, may impose a higher level of review of remedy available to HUD, HUD may go to a MAP Lender Review Board the lender’s underwriting by HUD; take the following actions with respect composed of the same members who (4) Suspension is nationwide in effect. to a MAP lender: issued the original probation. (c) Duration of suspension. (1) (1) Warning letter; (2) During the probation period, a Suspension may not exceed 12 months, (2) Probation; MAP lender: except where conditions are imposed. If (3) Suspension; (i) Shall be removed from the MAP- both a time period and conditions are Approved Lender list posted on HUD’s (4) Termination; imposed, a suspension shall terminate Web site; (5) Limited Denial of Participation only when: (ii) May not submit, and HUD may not (LDP); (i) The time period of the suspension accept, materials after the close of (6) Referral to the Mortgagee Review has expired; business of the date of the probation Board; and (ii) The MAP lender has submitted a letter for a new application under MAP (7) Referral to the Office of Inspector certification of compliance with those for multifamily mortgage insurance from General. conditions to the Board; and (b) The actions listed in paragraphs HUD; and (iii) May continue to process any (iii) The Board has notified the MAP (a)(1) through (a)(4) of this section are existing application for multifamily lender it has received the certification of carried out in accordance with the mortgage insurance submitted to a compliance and is satisfied that the requirements of this subpart. An LDP is Multifamily Hub or Program Center corrective actions have occurred. a sanction applied in accordance with before the date of the probation letter. (2) When suspension is lifted, the subpart G of 24 CFR part 24 to (3) The MAP Lender Review Board lender’s name shall be promptly participants in loan transactions other may impose a higher level of review of reinstated on the MAP-Approved than FHA-insured lenders. The the lender’s underwriting by HUD; Lender list posted on HUD’s Web site. Mortgagee Review Board procedures are (4) Probation is nationwide in effect. § 200.1520 Termination of MAP privileges. found at 24 CFR part 25. (c) Duration of probation. (1) (a) In general. Except as provided in § 200.1505 Warning letter. Probation continues until all specific corrective actions required by the MAP paragraph (b) of this section, only the (a) In general. HUD may issue a Lender Review Board (for example, MAP Lender Review Board may warning letter, which specifies exclusion of a specific staff member terminate a lender’s MAP privileges, in problems or violations identified by from work on MAP loans) are taken by accordance with the procedures of HUD, to a MAP lender. the MAP lender. When all corrective § 200.1535. (b) Effect of warning letter. The actions have been taken, the MAP (b) Administrative termination. HUD warning letter: lender shall notify the Board. Once the will notify a lender of immediate (1) Does not suspend a lender’s MAP Board is satisfied that the corrective termination of MAP privileges when privileges; actions have occurred, the probation either of the following circumstances is (2) May impose a higher level of period shall end. present: review of the lender’s underwriting by (2) A false statement that corrective (1) Failure by the MAP lender to HUD; action has been taken constitutes a false maintain its status as an FHA-approved (3) May direct the taking of a certification and may constitute a lender; or corrective action; and violation of 18 U.S.C. 1001. (2) Failure by the MAP lender to (4) May require a meeting in a (3) When probation is lifted, the maintain a minimum level of MAP designated HUD office with the lender’s name shall be promptly lender activity, as evidenced by failure principal owners or officers, or both, of reinstated on the MAP-Approved to submit either a pre-application the MAP lender to discuss the specified Lender list posted on HUD’s Web site. package or firm commitment problems and violations, and possible application at least once every 12 corrective actions. § 200.1515 Suspension of MAP privileges. months. (c) Relationship to other sanctions. (a) In general. Only the MAP Lender (c) Effect of termination. (1) The The issuance of a warning letter is not Review Board may suspend a lender’s terminated lender shall be removed
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from the MAP-Approved Lender list on problems that led to termination have significant information will result in a HUD’s Web site. been resolved. return of the application and retention (2) A terminated lender may not of any fee collected; submit, and the HUD field office may § 200.1525 Settlement agreements. (2) Repeated failure to complete not accept, materials after the close of (a) HUD staff, as authorized, may processing to firm commitment business of the date of the termination negotiate a settlement agreement with a unrelated to an underwriting analysis letter for new multifamily mortgage MAP lender before or after the issuance that demonstrates that the process insurance from HUD. of a warning letter or referral to the should not proceed to firm commitment; (3) Any MAP pre-application or MAP MAP Lender Review Board. Once a (3) Preparation of an underwriting application in process may no longer be matter has been referred to the MAP summary that is not supported by the processed under MAP by the terminated Lender Review Board, only the Board appropriate documentation and Lender. The lender will either: may approve a settlement agreement. analysis; (i) Immediately transfer the (b) Settlement agreements may (4) Failure to notify the HUD transaction to the traditional application provide for: processing office promptly of changes in processing (TAP) procedure. HUD will (1) Cessation of any violation; the mortgage loan application for a firm completely reprocess all stages of the (2) Correction or mitigation of the commitment submitted, such as changes transaction; or effects of any violation; in rents, numbers of units, or gross (ii) Immediately transfer the project to (3) Removal of lender staff from project area; a new MAP lender. The new MAP positions involving origination, (5) Failure to meet MAP closing lender must completely reprocess all underwriting and/or construction loan requirements or construction loan stages of the transaction. At no time can administration; administration requirements; (4) Actions to collect sums of money the new MAP lender assign the pre- (6) Business practices that do not wrongfully or incorrectly paid by the application, the firm application, the conform to those generally accepted by MAP lender to a third party; mortgage insurance commitment, or the prudent lenders or that show (5) Implementation or revision of a insured construction loan back to the irresponsibility; and quality control plan or other corrective original MAP lender. (7) Failure to cooperate with a Lender (4) HUD will not endorse any MAP measure acceptable to HUD; and Qualifications and Monitoring Division loan processed by the terminated lender (6) Modification of the duration or review by HUD. unless a firm commitment was issued provisions of any administrative (b) Serious offenses that might be a before the date of termination. sanction deemed to be appropriate by basis for a warning letter or probation, (i) Firm commitments involving new HUD. suspension, or termination include: construction or substantial (c) A MAP lender’s compliance with rehabilitation must be immediately a settlement agreement is evidenced by (1) Receipt of multiple warning letters transferred to a new MAP lender. At no the lender certifying its compliance over any one-year period. In time can the new MAP lender assign the with the conditions of the agreement, determining which sanction to pursue firm mortgage insurance commitment, and HUD’s determination that the as a result of prior warning letters, HUD or the insured construction loan, back to lender is in compliance with the will consider the facts and the original MAP lender. conditions of the agreement. circumstances surrounding those (ii) Firm commitments issued for (d) Failure by a MAP lender to warning letters and the corrective Section 223(f) projects may be comply with a settlement agreement actions, if any, undertaken by the transferred before final endorsement to may result in a probation, or lender; any approved FHA lender or kept in the suspension, or termination of MAP (2) Fraud or material lender’s portfolio. privileges, or referral to the Mortgagee misrepresentation in the lender’s (iii) For those construction loans that Review Board. participation in FHA multifamily have been initially endorsed, the MAP programs; lender will lose its MAP privileges for § 200.1530 Bases for sanctioning a MAP (3) Lender collusion with, or construction loan administration. HUD lender. influence upon, third party contractors will assume all the construction loan It is HUD policy that approved MAP to modify reports affecting the administration duties it normally lenders are expected to comply at all contractor’s independent evaluation; performs for TAP processing. times with HUD’s underwriting and (4) A violation of MAP procedures by (iv) The original lender may service a construction loan administration a third party contractor, which the MAP transferred loan once it is finally requirements and not to take any action lender knew, or should have known, endorsed. that presents a risk to HUD’s insurance was occurring and which, if performed (5) Termination is nationwide in funds. A MAP lender’s improper by the MAP lender itself, would effect. underwriting and construction loan constitute a ground for a sanction under (6) When a MAP lender loses its MAP administration activities may lead to a this chapter; lender status as a result of termination, warning letter or other sanction from (5) Evidence that a lender’s the Lender’s status to process HUD. Examples of such activities inadequate or inaccurate underwriting transactions using TAP is unaffected, include, but are not limited to, the was a cause for assignment of an FHA- provided that the Lender has following: insured mortgage and claim for maintained its status as an FHA- (a) Minor offenses that may be the insurance benefits to HUD; approved multifamily lender. basis for a warning letter include: (6) Identity-of-interest violations as (d) Reinstatement. An application for (1) Failure to provide required defined by Chapter 2 of the MAP Guide; reinstatement of MAP authority may not exhibits or the submission of (7) Payment by, or receipt of a be made until at least 12 months after incomplete or inaccurate exhibits. payment by, a MAP lender of any the date of termination. The Although the MAP lender will be kickback or other consideration, directly requirements for reinstatement shall be permitted to correct minor errors or or indirectly, which would affect the the same as for initial qualification, and provide additional information, lender’s independent evaluation, or the applicant must show that the substantial inaccuracies or lack of represent a conflict of interest, in
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connection with any FHA-insured agreements in accordance with consideration of any written response mortgage transaction; § 200.1525 of any matter pending before submitted by the MAP lender. (8) Failure to comply with any the Board. (d) Informal conference. (1) The Board agreement, certification, undertaking, or (3) Extensions. The Board is will schedule an informal conference condition of approval listed in a MAP authorized to extend, on its own and notify the lender of the time and lender’s application for approval; initiative or for good cause at the place of the conference, if one is (9) Noncompliance with any written request of a MAP lender, any requested. requirement or directive of the MAP time limit otherwise applicable under (2) At the conference, the Board will Lender Review Board; this section. Notice of any such meet with the lender or its designees (10) Violation of the requirements of extension shall be timely provided to a and HUD staff to review documentary any contract with HUD, or violation of MAP lender. evidence and presentations by both the requirements in any statute or (b) Notice of violation. Before the regulation; sides. Board reviews a matter for consideration (3) Oral statements made at the (11) Submission of false information, of a sanction, the Board’s Chairman will or a false certification, to HUD in informal meeting will not be considered issue written notice of violation to the connection with any MAP mortgage as part of the administrative record of MAP lender’s contact person as listed transaction; the Board’s determination, except: (12) Failure of a MAP lender to on the Multifamily MAP Web site. The (i) The Board may note for the record respond in a timely manner to inquiries notice is sent by overnight delivery and and consider voluntary admissions, from the MAP Lender Review Board in must be signed for by an employee of made by the lender or a representative accordance with this subpart; the MAP lender upon receipt. The of the lender, of any element of the (13) Indictment or conviction of a notice: violation charged; (1) Informs the lender that the Board MAP lender or any of its officers, (ii) Statements substantiated by any is considering a specific violation; directors, principals or employees for an additional documents or evidence (2) States the specific facts alleged offense that reflects on the submitted in accordance with concerning the violation, with citation responsibility, integrity, or ability of the paragraphs (e)(1) or (e)(3) of this section; to the HUD requirements that have been lender to participate in the MAP and violated; initiative; (iii) Transcripts prepared and (14) Employing or retaining an officer, (3) Includes as attachments copies of submitted in accordance with paragraph partner, director, or principal at the time all documents evidencing the violation (e)(2) of this section. when the person was suspended, and upon which the Board will rely in debarred, ineligible, or subject to an reaching a decision; (e) Post-conference submissions. (1) LDP under 24 CFR part 24, or otherwise (4) Provides the lender with the Any additional documents, evidence, or prohibited from participation in HUD opportunity to request in writing, written arguments relevant to the notice programs, when the MAP lender knew within 15 business days after the date of of violation and the informal conference or should have known of the the issuance of the notice, to: that the lender or HUD staff wish to prohibition; (i) Meet for an informal conference present to the Board, must be presented (15) Employing or retaining an with the Board in person or by video within five business days after date of employee who is not an officer, partner, conference using HUD facilities at the informal conference. director or principal, and who is or will Headquarters or one of HUD’s field (2) No transcript of the informal be working on HUD–FHA program offices; and conference will be made, unless the matters, at a time when that person was (ii) Present written evidence and any lender elects to have a transcript made suspended, debarred, ineligible, or other relevant information at the by a certified court reporter at its own subject to an LDP under 24 CFR part 24 conference; expense. If the lender elects to have a or otherwise prohibited from (5) Requires a written response to be transcript made, the lender must participation in HUD programs, when submitted to the Board by a date provide three copies of the transcript to the MAP lender knew or should have specified within the notice; HUD within five business days after the known of the prohibition; (6) Provides the street address, e-mail date of the informal conference. The (16) Failure to cooperate with an audit address, or facsimile (fax) number for transcript will not become a part of the or investigation by the HUD Office of purposes of receiving the lender’s administrative record of the Board’s Inspector General or an inquiry by HUD request for an informal conference and decision unless it is submitted within into the conduct of the MAP lender’s written response; and the required five-day period frame. FHA-insured loans; and (7) Is made part of the administrative (3) Following the receipt of any post- (17) Failure to fund MAP mortgage record of the Board’s decision of the conference submissions, the Board may loans or any misuse of mortgage loan matter. request or permit additional documents proceeds. (c) Response to notice. (1) The MAP or evidence to be submitted within a § 200.1535 MAP Lender Review Board. lender’s written response required by period set by the Board for inclusion in (a) Authority. (1) Sanctions. The MAP the notice of violation may not exceed the administrative record. Lender Review Board (or Board) is 15 double-spaced typewritten pages and (f) Board action. (1) The Board will authorized to impose appropriate must include an executive summary, a confer to consider the evidence sanctions on a MAP lender after: statement of the facts, an argument and included in the administrative record (i) Conducting an impartial review of a conclusion. The response and and make a final decision concerning all information and documentation supporting documentation must be the matter. Any record of confidential submitted to the Board; and submitted in triplicate. communications between and among (ii) Making factual determinations (2) Failure to respond by the dates Board members at this stage of the that there has been a violation of MAP specified within the notice may result in proceedings is privileged from requirements. a determination by the Board without disclosure and will not be regarded as (2) Settlement agreements. The Board conducting an informal conference with a part of the administrative record of is authorized to approve settlement the MAP lender and without any matter.
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(2) In determining what action is determines there exists a need to protect an appeal conference held more than 10, appropriate concerning the matter, the the financial interest of HUD from but not more than 30 business days after Board considers, among other factors: imminent harm. In all such instances, the date the lender requests an appeal. (i) The seriousness and the extent of the Board shall notify the lender of the (e) Scope of appeal. The appeals the violation; Board’s decision promptly and give the official may consider information (ii) Any history of prior offenses; reasons for the decision in accordance included in the administrative record (iii) Deterrence of future violations; with § 200.1535(g)(2) and (3). The and any new information presented at (iv) Any inappropriate benefits lender shall have the right to submit the appeal conference that is received by the MAP lender; materials to the Board and to appear substantiated in accordance with (v) Potential inappropriate benefit to before the Board to seek prompt paragraph (f) of this section. In addition, other persons; and reconsideration of the Board’s decision the appeals official may consider (vi) Any mitigating factors. in accordance with the procedures of voluntary admissions by the lender or a (3) Board decisions will be § 200.1535. representative of the lender of any determined by majority vote. element of the violation charged. (g) Notice of action. (1) The Board will § 200.1545 Appeals of MAP Lender Review Board decisions. (f) Additional documents. (1) issue its final decision within 10 Transcript. No transcript of the appeal business days after the date of the (a) Request for appeal. Whenever the conference will be made, unless the informal conference or the expiration of Board imposes a sanction of probation, MAP lender elects to have a transcript any period allowed for the submission suspension or termination against a made by a certified court reporter at its of documents and evidence, whichever MAP lender, the lender may request, in own expense. If the lender elects to have is later. writing, an appeal conference before the a transcript made, it must provide three (2) The Board will notify the MAP appeals official. The MAP lender must copies of the transcript to the appeals lender of its final decision by overnight deliver the written request for an appeal official within five business days after delivery of a written notice of the final to the appeals official within 10 the date of the appeal conference. decision to the MAP lender’s contact business days after the date noted on the (2) Other documents. Any additional, person as listed on the Multifamily notice of action or the right to an appeal relevant documents or written MAP Web site. The Board will also is deemed waived. Participation in the arguments that the MAP lender wishes notify HUD field offices of its final appeal process under this section is not to present to the appeals official must be decision. a prerequisite to filing an action for presented within five business days (3) The final decision finds that a judicial review under the after the date of the appeal conference. violation either does, or does not, exist. Administrative Procedure Act. (g) Determination of appeal. Within If a violation is found to exist, the final (b) Appeals Official. The appeals 10 business days after the date of the decision: official must be an individual who has appeal conference or the expiration of (i) States the violation and any factual not been previously involved with the the period allowed for the submission of findings of the Board; proceedings or settlement discussions at documents and written arguments, (ii) States the nature and duration of issue. whichever is later, the appeals official the sanction; (c) Notice of action in effect. The will make a written determination to (iii) Informs the MAP lender of its notice of action issued by the Board confirm, modify, or overturn the Board’s right to an appeal conference and remains in effect while the appeal is decision and notice of action. If the identifies the appeals official to be pending. appeals official overturns the Board’s contacted; and (d) Scheduling of appeal. (1) Upon decision, the lender shall immediately (iv) May add to or modify the receipt of the request for an appeal, the return to an active status as a MAP violation as stated in the initial notice appeals official will promptly notify the lender and the written determination to of violation. MAP lender of the time and place of the overturn will be posted on HUD’s MAP appeal conference. The appeal Web site. § 200.1540 Imminent harm notice of action. conference will be held within 10 The Board may issue an imminent business days after receipt of the MAP Dated: November 23, 2004. harm notice of action to terminate a lender’s appeal request, except as John C. Weicher, MAP lender, or to place a MAP lender provided in paragraph (d)(2) of this Assistant Secretary for Housing—Federal on probation or suspension without section. Housing Commissioner. advance notice to the MAP lender in (2) A MAP lender may request, and [FR Doc. 04–27535 Filed 12–16–04; 8:45 am] those instances where the Board the appeals official may agree, to have BILLING CODE 4210–27–P
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Reader Aids Federal Register Vol. 69, No. 242 Friday, December 17, 2004
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER
Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 7 CFR Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Proclamations: 210...... 70871, 70872 220...... 70872 The United States Government Manual 741–6000 7850...... 70351 7851...... 70353 319...... 71691 Other Services 7852...... 71689 354...... 71660 Electronic and on-line services (voice) 741–6020 7853...... 74945 457...... 74405 Privacy Act Compilation 741–6064 7854...... 74947 905...... 70874 Public Laws Update Service (numbers, dates, etc.) 741–6043 Executive Orders: 1005...... 71697 1006...... 71697 TTY for the deaf-and-hard-of-hearing 741–6086 12473 (Amended by EO 13365)...... 71333 1007...... 71697 13286 (See EO 1464...... 70367 ELECTRONIC RESEARCH 13362) ...... 70173 1775...... 70877 World Wide Web 13289 (See EO 1806...... 75454 Full text of the daily Federal Register, CFR and other publications 13363) ...... 70175 1822...... 75454 is located at: http://www.gpoaccess.gov/nara/index.html 13303 (Amended by 1902...... 75454 EO 13364)...... 70177 1925...... 75454 Federal Register information and research tools, including Public 13315 (See EO 1930...... 75454 Inspection List, indexes, and links to GPO Access are located at: 13364) ...... 70177 1940...... 75454 http://www.archives.gov/federallregister/ 13350 (See EO 1942...... 75454 E-mail 13364) ...... 70177 1944...... 75454 13362...... 70173 1951...... 70883, 75454 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13363...... 70175 1955...... 75454 an open e-mail service that provides subscribers with a digital 13364...... 70177 1956...... 75454 form of the Federal Register Table of Contents. The digital form 13365...... 71333 1965...... 75454 of the Federal Register Table of Contents includes HTML and Administrative Orders: 3560...... 75454 PDF links to the full text of each document. Memorandums: 3565...... 75454 To join or leave, go to http://listserv.access.gpo.gov and select Memorandum of Proposed Rules: Online mailing list archives, FEDREGTOC-L, Join or leave the list October 21, 2004 ...... 70349 319...... 71736 (or change settings); then follow the instructions. Memorandum of 929...... 69996 PENS (Public Law Electronic Notification Service) is an e-mail December 8, 2004 ...... 74935 930...... 71744 service that notifies subscribers of recently enacted laws. Memorandum of 983...... 71749 December 8, 2004 ...... 74937 989...... 71753 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Memorandum of and select Join or leave the list (or change settings); then follow December 8, 2004 ...... 74939 9 CFR the instructions. Memorandum of 166...... 70179 FEDREGTOC-L and PENS are mailing lists only. We cannot December 8, 2004 ...... 74941 317...... 74405 respond to specific inquiries. Presidential 381...... 74405 Reference questions. Send questions and comments about the Determinations: 430...... 70051 Federal Register system to: [email protected] No. 2005–07 of November 29, 10 CFR The Federal Register staff cannot interpret specific documents or 2004 ...... 72109 regulations. 25...... 74949 No. 2005–08 of 95...... 74949 November 29, Proposed Rules: 2004 ...... 74931 FEDERAL REGISTER PAGES AND DATE, DECEMBER 25...... 75007 No. 2005–09 of 95...... 75007 69805–70050...... 1 December 6, 2004 ...... 74933 70051–70178...... 2 5 CFR 11 CFR 70179–70350...... 3 317...... 70355 Proposed Rules: 70351–70536...... 6 300...... 71388 70537–70870...... 7 352...... 70355 70871–71338...... 8 359...... 70355 12 CFR 451...... 70355 71339–71690...... 9 530...... 70355 Proposed Rules: 71691–72108...... 10 531...... 70355, 75451 226...... 70925 72109–74404...... 13 534...... 70355 13 CFR 74405–74946...... 14 575...... 70355 74947–75222...... 15 841...... 69805 121...... 70180 75223–75450...... 16 842...... 69805 Proposed Rules: 75451–75818...... 17 843...... 69805 121...... 70197 6 CFR 14 CFR Proposed Rules: 23...... 70885, 74407 5...... 70402 39 ...... 69807, 69810, 70368,
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70537, 70539, 71339, 71340, 18 CFR 4...... 75408 51-3...... 70214 71342, 71344, 71347, 71349, 11...... 71364 1952...... 75436 51-4...... 70214 71351, 71353, 74411, 74412, 75223, 75225, 75228, 75231, Proposed Rules: 30 CFR 42 CFR Ch. 1 ...... 70077 75233, 75236 18...... 70752 1003...... 74451 71 ...... 70053, 70185, 70371, 21 CFR 938...... 71528, 71551 Proposed Rules: 70372, 70541, 70542, 71701, 1001...... 71766 71702, 72111, 72112, 74953, 1...... 71562, 71655 31 CFR 10...... 74418 74954, 74955, 75454 103...... 74439 43 CFR 11...... 71562 515...... 75468 73...... 70887, 72113 44...... 70557 510...... 70053 538...... 75468 91...... 74413 1880...... 70557 95...... 74413 520...... 70053, 74418 560...... 75468 97...... 74415 522...... 70054, 70055 558...... 70056 32 CFR 44 CFR Proposed Rules: 880...... 70702 64...... 70377, 75481 39 ...... 69829, 69832, 69834, 635...... 75245 1310...... 74957 Proposed Rules: 65 ...... 70185, 71718, 72128, 69836, 69838, 69842, 69844, 75483 70202, 70204, 70564, 70566, Proposed Rules: 637...... 75287 165...... 70082 67 ...... 70191, 70192, 71721, 70568, 70571, 70574, 70936, 33 CFR 72131, 75484 70938, 72134, 72136, 74461, 1301...... 70576 74463, 74465, 75267, 75270, 100...... 70551, 70552 Proposed Rules: 22 CFR 67 ...... 72156, 72158, 75496, 75273, 75275, 75277, 75280, 117 ...... 70057, 70059, 70373, 75499 75282 122...... 70888 71704, 71706, 74441, 74975, 61...... 74898 129...... 70888 75472 165 ...... 70374, 71708, 71709, 45 CFR 63...... 74898 23 CFR 65...... 74898 74442 Proposed Rules: 67...... 74898 650...... 74419 Proposed Rules: 650...... 71395 71 ...... 70208, 71756, 75490, 655...... 69815 100...... 70578 110...... 71758, 75009 46 CFR 75491 24 CFR 91...... 74898 117 ...... 70091, 70209, 72138, 310...... 74454 121...... 74898 200...... 74894 75011, 75013, 75493 47 CFR 135...... 74898 202...... 75802 165 ...... 70211, 71758, 75009 206...... 75204 0...... 70316 35 CFR 15 CFR 570...... 70864 1 ...... 70378, 72020, 75144 6...... 74416 Proposed Rules: Ch. I ...... 71375 2...... 71380, 72020 732...... 71356 200...... 75812 36 CFR 4...... 70316 734...... 71356 206...... 70244 11...... 72020 740...... 71356 970...... 75188 13...... 70061 15...... 71380, 72020 742...... 71356 2004...... 70868 242...... 70074 18...... 70562 744...... 71356 3280...... 70016 1228...... 74976 21...... 72020 750...... 69814 Proposed Rules: 22...... 75144 772...... 71356 25 CFR 242...... 70940 24...... 75144 806...... 70543 Proposed Rules: 37 CFR 27 ...... 70378, 72020, 75144 542...... 69847 54...... 74985 Proposed Rules: 201...... 70377 710...... 70754 63...... 70316 26 CFR 253...... 69822 711...... 70754 64...... 71383 712...... 70754 1 ...... 70547, 70550, 75455 38 CFR 73 ...... 71384, 71385, 71386, 25...... 70547 71387, 72020, 74988 713...... 70754 21...... 74977 714...... 70754 31...... 69819, 70547 74...... 70378, 72020 715...... 70754 53...... 70547 40 CFR 76...... 72020 716...... 70754 55...... 70547 9...... 70552, 75472 78...... 72020 717...... 70754 156...... 70547 52 ...... 69823, 70893, 70895, 79...... 72020 718...... 70754 301...... 70547 71375, 71712, 72115, 72118, 90...... 70378, 75144 719...... 70754 602...... 70547, 70550 75473, 75478 101...... 70378, 72020 720...... 70754 Proposed Rules: 63...... 74979 Proposed Rules: 721...... 70754 1 ...... 70578, 71757, 75492 70...... 75478 1...... 72046, 75174 722...... 70754 26...... 70404 180...... 70897, 71714 22...... 75174 723...... 70754 301...... 71757 228...... 75256 24...... 75174 724...... 70754 27...... 72046, 75174 27 CFR 271...... 70898, 74444 725...... 70754 300...... 74448 73 ...... 71396, 75016, 75017 726...... 70754 9...... 70889, 71372 712...... 70552 90...... 74174 727...... 70754 28 CFR Proposed Rules: 48 CFR 728...... 70754 52 ...... 69863, 70944, 70945, 729...... 70754 16...... 72114 71390, 71764, 75495 Ch. 2 ...... 74995 906...... 75243 203...... 74989 17 CFR 60...... 69864, 71472 206...... 74990 29 CFR 63...... 69864, 75015 240...... 70852 70...... 75495 209...... 74989 248...... 71322 570...... 75382 93...... 72140 212...... 74991 275...... 72054 579...... 75382 271...... 70946, 74467 213...... 74991 279...... 72054 580...... 75382 272...... 71391 217...... 74992 Proposed Rules: 1926...... 70373 300...... 74467 219...... 74995 228...... 75774 2590...... 75798 720...... 75496 225...... 74991 229...... 75774 4011...... 69820 721...... 70404 236...... 75000 230...... 75774 4022...... 69820, 74973 237...... 75000 240 ...... 71126, 71256, 75774 4044...... 69821, 74973 41 CFR 252...... 74989, 74991 242...... 71126, 75774 Proposed Rules: Proposed Rules: 909...... 75001 249...... 71126 1...... 75408 51-2...... 70214 970...... 75001
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Ch. 35 ...... 75266 178...... 70902 50 CFR Proposed Rules: Proposed Rules: 219...... 72133 14...... 70379 17 ...... 69878, 70412, 70580, 571 ...... 70904, 74848, 75486 901...... 75017 17...... 70382, 71723 70971, 71284, 72161, 74468, 970...... 75017 585...... 70904 75608 100...... 70074 586...... 70904 20...... 71770 49 CFR 589...... 70904 222...... 69826 223...... 69826 100...... 70940 171...... 70902, 75208 590...... 70904 226...... 71880, 74572 596...... 70904 300...... 71731 172...... 75208 229...... 70094 173...... 70902, 75208 597...... 70904 622...... 70196 635...... 71771 174...... 70902 Proposed Rules: 635 ...... 70396, 71732, 71735 175...... 70902, 75208 571...... 75020 648...... 70919, 70923 648...... 70414 176...... 70902 572...... 70947 679 ...... 69828, 70924, 74455, 660...... 70973 177...... 70902 1507...... 71767 75004, 75005 679 ...... 70589, 70605, 70974
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REMINDERS crossings; requirement for orders rejection; electronic notice; published 10-21- The items in this list were sounding; correction; transmission of reasons; 04 [FR 04-17730] editorially compiled as an aid published 1-13-04 comments due by 12-22- ENERGY DEPARTMENT 04; published 11-22-04 to Federal Register users. Federal Energy Regulatory [FR 04-25718] Inclusion or exclusion from RULES GOING INTO Commission this list has no legal EFFECT DECEMBER 19, COMMERCE DEPARTMENT Electric rate and corporate significance. 2004 National Oceanic and regulation filings: Atmospheric Administration Virginia Electric & Power RULES GOING INTO COMMERCE DEPARTMENT Fishery conservation and Co. et al.; Open for management: EFFECT DECEMBER 17, National Oceanic and comments until further Atmospheric Administration Northeastern United States notice; published 10-1-03 2004 fisheries— [FR 03-24818] Fishery conservation and Atlantic surfclams, ocean ENVIRONMENTAL ENVIRONMENTAL management: quahogs, and Maine PROTECTION AGENCY PROTECTION AGENCY Northeastern United States mahogany ocean Air quality implementation Reporting and recordkeeping fisheries— quahogs; comments plans; approval and requirements; published 12- Summer flounder; due by 12-20-04; promulgation; various 17-04 published 12-20-04 published 11-18-04 [FR States: 04-25640] FEDERAL California; comments due by COMMUNICATIONS COMMENTS DUE NEXT Northeast multispecies; 12-20-04; published 11- COMMISSION WEEK comments due by 12- 19-04 [FR 04-25625] Common carrier services: 20-04; published 11-19- Oregon; comments due by 04 [FR 04-25722] Wireless telecommunications AGRICULTURE 12-22-04; published 11- services— DEPARTMENT Summer flounder, scup 22-04 [FR 04-25628] and black sea bass; Tribal lands; published 10- Agricultural Marketing Environmental statements; comments due by 12- 18-04 Service availability, etc.: PERSONNEL MANAGEMENT 21-04; published 12-6- Cotton classing, testing and 04 [FR 04-26724] Coastal nonpoint pollution OFFICE standards: control program— Pay under General Schedule: West Coast States and Classification services to Western Pacific Minnesota and Texas; Locality pay areas; growers; 2004 user fees; fisheries— Open for comments adjustments; published Open for comments until until further notice; Pacific sardine; comments 12-17-04 further notice; published published 10-16-03 [FR due by 12-23-04; 5-28-04 [FR 04-12138] 03-26087] TRANSPORTATION published 12-8-04 [FR DEPARTMENT Raisins produced from grapes 04-26953] Solid waste: Federal Aviation grown in— Land disposal restrictions— COURT SERVICES AND Administration California; comments due by OFFENDER SUPERVISION Chemical Waste Airworthiness standards: 12-20-04; published 12- AGENCY FOR THE Management, Chemical Transport category 10-04 [FR 04-27162] DISTRICT OF COLUMBIA Services, LLC; site- specific treatment airplanes— Spearmint oil produced in— Semi-annual agenda; Open for standard variance for Emergency evacuation Far West; comments due by comments until further selenium waste; demonstration 12-20-04; published 10- notice; published 12-22-03 comments due by 12- procedures; revision; 21-04 [FR 04-23628] [FR 03-25121] published 11-17-04 20-04; published 11-19- AGRICULTURE DEFENSE DEPARTMENT 04 [FR 04-25716] TREASURY DEPARTMENT DEPARTMENT Acquisition regulations: Chemical Waste Foreign Assets Control Animal and Plant Health Pilot Mentor-Protege Management, Chemical Office Inspection Service Program; Open for Services, LLC; site- Cuban Assets, Sudanese Plant-related quarantine, comments until further specific treatment Sanctions and Iranian foreign: notice; published 12-15-04 standard variance for Transactions regulations: Pine shoot beetle; [FR 04-27351] selenium waste; Publication activities; general comments due by 12-20- ENERGY DEPARTMENT comments due by 12- licenses; published 12-17- 04; published 10-20-04 20-04; published 11-19- Meetings: 04 [FR 04-22220] 04 [FR 04-25717] Environmental Management TREASURY DEPARTMENT Toxic substances: AGRICULTURE Site-Specific Advisory Internal Revenue Service DEPARTMENT Board— Preliminary assessment Income taxes: information reporting; Rural Utilities Service Oak Ridge Reservation, addition of chemicals; S corporation securities; Telecommunications TN; Open for comments comments due by 12-21- prohibited allocations; specifications and standards: until further notice; 04; published 12-7-04 [FR published 12-17-04 Materials, equipment and published 11-19-04 [FR 04-26821] construction— 04-25693] Water pollution control: RULES GOING INTO Cable splicing connectors; ENERGY DEPARTMENT EFFECT DECEMBER 18, comments due by 12- National Pollutant Discharge Energy Efficiency and Elimination System— 2004 20-04; published 10-20- Renewable Energy Office 04 [FR 04-23477] Concentrated animal Commercial and industrial feeding operations in TRANSPORTATION COMMERCE DEPARTMENT equipment; energy efficiency New Mexico and DEPARTMENT Industry and Security program: Oklahoma; general Federal Railroad Bureau Test procedures and permit for discharges; Administration National security industrial efficiency standards— Open for comments Railroad safety: base regulations: Commercial packaged until further notice; Locomotive horns use at Defense priorities and boilers; Open for published 12-7-04 [FR highway-rail grade allocations system; rated comments until further 04-26817]
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Water pollution; effluent Boulder darter and spotfin McDonnell Douglas; and Training Program Act of guidelines for point source chub; reintroduction to comments due by 12-20- 1998. (Dec. 10, 2004; 118 categories: Shoal Creek, AL and TN; 04; published 11-5-04 [FR Stat. 3469) Meat and poultry products comments due by 12-20- 04-24729] processing facilities; Open 04; published 10-21-04 Airworthiness standards: H.R. 4302/P.L. 108–450 for comments until further [FR 04-23587] Special conditions— District of Columbia Mental notice; published 9-8-04 NUCLEAR REGULATORY Cessna Model 172 series Health Civil Commitment [FR 04-12017] COMMISSION airplanes; comments Modernization Act of 2004 HEALTH AND HUMAN Environmental statements; due by 12-22-04; (Dec. 10, 2004; 118 Stat. SERVICES DEPARTMENT availability, etc.: published 11-22-04 [FR 3472) Food and Drug Fort Wayne State 04-25697] S. 437/P.L. 108–451 Administration Developmental Center; Thielert Aircraft Engines modified Cessna Model Food for human consumption: Open for comments until Arizona Water Settlements Act 172 series airplanes; Salmonella; shell egg further notice; published (Dec. 10, 2004; 118 Stat. 5-10-04 [FR 04-10516] comments due by 12- 3478) producers to implement 20-04; published 11-19- prevention measures; SMALL BUSINESS 04 [FR 04-25698] S. 1466/P.L. 108–452 comments due by 12-21- ADMINISTRATION Class E airspace; comments 04; published 9-22-04 [FR Disaster loan areas: due by 12-20-04; published Alaska Land Transfer 04-21219] Maine; Open for comments 11-3-04 [FR 04-24461] Acceleration Act (Dec. 10, Meetings; comments due 2004; 118 Stat. 3575) until further notice; TRANSPORTATION by 12-21-04; published published 2-17-04 [FR 04- DEPARTMENT 10-7-04 [FR 04-22476] S. 2192/P.L. 108–453 03374] National Highway Traffic Reports and guidance SOCIAL SECURITY Safety Administration Cooperative Research and documents; availability, etc.: ADMINISTRATION Motor vehicle safety Technology Enhancement Evaluating safety of Social Security benefits: standards: (CREATE) Act of 2004 (Dec. antimicrobial new animal Federal old age, survivors, Rear impact guards; 10, 2004; 118 Stat. 3596) drugs with regard to their and disability insurance— comments due by 12-20- microbiological effects on S. 2486/P.L. 108–454 Administrative review 04; published 11-5-04 [FR bacteria of human health 04-24737] Veterans Benefits concern; Open for process; incorporation TREASURY DEPARTMENT Improvement Act of 2004 comments until further by reference of oral findings of fact and Internal Revenue Service (Dec. 10, 2004; 118 Stat. notice; published 10-27-03 3598) [FR 03-27113] rationale in wholly Procedure and administration: favorable written Medical devices— Timely mailing of documents S. 2873/P.L. 108–455 decisions; comments and payments treated as Dental noble metal alloys due by 12-20-04; timely filing and paying; To extend the authority of the and base metal alloys; published 10-20-04 [FR comments due by 12-20- United States District Court for Class II special 04-23357] 04; published 9-21-04 [FR the Southern District of Iowa controls; Open for 04-21218] to hold court in Rock Island, comments until further OFFICE OF UNITED STATES TRADE REPRESENTATIVE Illinois. (Dec. 10, 2004; 118 notice; published 8-23- Stat. 3628) 04 [FR 04-19179] Trade Representative, Office LIST OF PUBLIC LAWS of United States HOMELAND SECURITY S. 3014/P.L. 108–456 DEPARTMENT Generalized System of This is a continuing list of Preferences: public bills from the current To reauthorize the Harmful Coast Guard session of Congress which Algal Bloom and Hypoxia Anchorage regulations: 2003 Annual Product Review, 2002 Annual have become Federal laws. It Research and Control Act of Maryland; Open for Country Practices Review, may be used in conjunction 1998, and for other purposes. comments until further and previously deferred with ‘‘PLUS’’ (Public Laws (Dec. 10, 2004; 118 Stat. notice; published 1-14-04 product decisions; Update Service) on 202–741– 3630) [FR 04-00749] petitions disposition; Open 6043. This list is also Last List December 13, 2004 HOUSING AND URBAN for comments until further available online at http:// DEVELOPMENT notice; published 7-6-04 www.archives.gov/ DEPARTMENT [FR 04-15361] federal—register/public—laws/ Practice and procedure: TRANSPORTATION public—laws.html. Public Laws Electronic Applications for grants and DEPARTMENT The text of laws is not Notification Service other financial assistance; Federal Aviation published in the Federal (PENS) electronic submission; Administration Register but may be ordered comments due by 12-23- Airworthiness directives: in ‘‘slip law’’ (individual 04; published 11-23-04 pamphlet) form from the [FR 04-25893] B-series combustion PENS is a free electronic mail heaters, models B1500, Superintendent of Documents, INTERIOR DEPARTMENT U.S. Government Printing notification service of newly B2030, B3040, B3500, enacted public laws. To Fish and Wildlife Service Office, Washington, DC 20402 B4050, and B4500; subscribe, go to http:// Endangered and threatened comments due by 12-20- (phone, 202–512–1808). The text will also be made listserv.gsa.gov/archives/ species permit applications 04; published 10-22-04 publaws-l.html Recovery plans— [FR 04-23620] available on the Internet from GPO Access at http:// Paiute cutthroat trout; Boeing; comments due by www.gpoaccess.gov/plaws/ Note: This service is strictly Open for comments 12-20-04; published 11-3- index.html. Some laws may for E-mail notification of new until further notice; 04 [FR 04-24540] not yet be available. laws. The text of laws is not published 9-10-04 [FR Hartzell Propeller Inc.; available through this service. 04-20517] comments due by 12-20- H.R. 2655/P.L. 108–449 PENS cannot respond to Endangered and threatened 04; published 10-20-04 To amend and extend the specific inquiries sent to this species: [FR 04-23366] Irish Peace Process Cultural address.
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